22.06.2023

Abortion should not be illegal

Carla Foster has been handed a 28-month sentence. Mike Macnair warns that this is part of a wider Tory culture-war offensive designed to rally the right

“Hard cases make bad law” is a proverb of modern Anglo-American law, invented somewhere in the late 18th to early 19th century.

The idea is about law-making through judicial precedents. In its original form the point is that law should not be made on the basis of unusual cases, which would tend to create rules which cause injustice to a much wider class of people: as the idea used to be formulated, “the law will rather suffer a particular mischief, than to open a gap to a general inconvenience”. Both ‘mischief’ and ‘inconvenience’ had changed their meaning so far that some reformulation was necessary. But the more modern version has tended towards the more general idea that judges should, when making precedents, not be swayed too much by the fact that the outcome seems ‘hard’ - that is, morally or emotionally unattractive.

In this context, it is perfectly possible for ‘hard cases’ to be concocted by Tory barristers and the advertising-funded media - precisely in order to create ‘bad law’, meaning law which is driven by Tory ideological fantasies and/or electoral scams. Thus in Shaw v DPP in 1961, a case about advertising prostitutes was used to reassert the 18th century claim that the courts are the guardians of public morality and can, as such, invent new crimes. The point was to undermine the recommendations of the 1957 Wolfenden report that homosexuality should be decriminalised; the purpose of using a case about advertising prostitutes was to make it politically more difficult to denounce Shaw as a usurpation of the legislative power. The underlying point was to assert that even if homosexuality was decriminalised in a limited way (as happened in 1967) it should remain unlawful.

Similarly, in Pettitt v Pettitt and Gissing v Gissing in 1969 and 1970, and again in Lloyd’s Bank v Rosset in 1990, cases were selected for appeal to the House of Lords on claims to shares in houses where the labour contribution on the basis of which the claim was made was minimal. The point was to reassert the ‘normal’ (patriarchal exploitation of family labour) position that the wife or female cohabitant’s contributions in labour to the marital household would not give her a share in the property. The selection of unusual, minimal-contribution cases to be appealed ‘dramatised’ the idea for the press that the “solid tug of money” should prevail in these cases (Pettitt added to this rhetorical role that the claim in that case was made by the husband to a share in the wife’s inherited property). All three are thus artificial hard cases which made bad law.

I have discussed this issue in order to establish the politico-legal background to what, I think, is happening in the severe sentence handed down to Carla Foster for her illegal acquisition and use of abortifacient drugs after the legal limit - and the wide publicity given to it, including the (unusual) web publication of the judge’s sentencing remarks. Indeed, the BBC’s report includes a comment from an official spokesperson: “Our laws as they stand balance a woman’s right to access safe and legal abortions with the rights of an unborn child” - the language of the ‘rights of the unborn’ preferred by the Christian anti-abortion lobby.

The point is not that Foster was charged or convicted, though it should be noted that prosecutions are sufficiently rare that there is no ‘sentencing guideline’ and Pepperall J relied for his views as to an appropriate sentence on a single Court of Appeal decision from 2013. Rather, it is the prominence which has been given to the case that seems to have politico-legal purposes: a ‘hard case’ selected by the Tory press with a view to making bad law.

The political trick here is to draw advocates of ‘a woman’s right to choose’ into defending a case which looks decidedly unattractive: because at 32-34 weeks, the foetus could very probably (95%+) have been born alive and survived; because Foster deceived the drug provider; and because Foster’s motivations are severely obscure - meaning that we do not have available any of the things which are, to moderate anti-abortionists, acceptable excuses for abortion (rape; illness, disability or mental illness of the mother; disability of the foetus; and so on). This unusual case is given deceptive prominence: a hard case with a view to making bad law. If advocates of ‘a woman’s right to choose’ are drawn into opposing the Foster prosecution and sentence, the Tories expect to win support among moderate anti-abortionists and among many women who would be uncomfortable with abortion this late in pregnancy.

The Tories then hope that this will enable them to run a successful culture-wars operation round abortion - as the Republicans have done in the US, and as the Tories themselves have recently been doing round ‘trans rights’. Christian anti-abortion groups were already preparing the ground for this operation in July 2022; the Foster case, they hope, will provide them with a launchpad for a new campaign starting with eliminating remote prescribing of abortion drugs (the supposed ‘culprit’ in the Foster case), and moving on to shorter time limits, and so on.

As with the ‘trans rights’ and ‘cancel culture’ culture wars operation, and those round ‘migrant criminality’ and ‘fake asylum-seekers’, it is unlikely that the top Tory leadership - or their hired-gun political operatives - have the slightest belief in the crap they utter and that their journos promote in these culture-war operations. Their underlying problem is that their government has, thanks to Brexit, to its Covid policies, and to the Ukraine war, made a lot of people seriously worse off. And the brief flirtation under Liz Truss with 1980s-style tax-cutting deregulation policies and competitive devaluation of the pound (and the immediately disastrous results of the mere suggestion of this policy) conveys an image of Tory economic incompetence that has not yet worn off. Infighting over Boris Johnson does not help. The polls continue to stand at around 45% Labour, 28% Conservative. Even if culture-war operations do not actually create a majority, it can be hoped that they will distract attention and hence save the Tories from the electoral disaster which seems to threaten them.

How to respond to this latest culture-wars initiative? In this case, it is possible that the right course of action is, as at least some pro-choice campaigners have done, to take the bait, bite the bullet and campaign for full decriminalisation of abortion.

Foster was originally charged with ‘child destruction’, contrary to the Infant Life Preservation Act 1929, which would be mandatory life imprisonment, like murder; but this was plea-bargained down to ‘procuring drugs to cause a miscarriage’ contrary to section 59 of the Offences Against the Person Act 1861 (OAPA), which has available imprisonment for life, but not mandatory, like manslaughter. Campaigners have commented on this act as archaic, but, as Tories have responded, it is, in fact, merely the modernising ‘code’ statute for crimes of violence. The legislation ‘codified’ in sections 58-59 of the OAPA was not particularly ancient, having started with Lord Ellenborough’s Act 1803, whose purpose was to modernise older legislation, including to get rid of the presumption of murder in unexplained infant death cases under a statute of 1624, which had been “found in sundry cases difficult and inconvenient to be put in practice”. So the argument is weak. If anything, the 19th century saw an extension of anti-abortion law, because medical advances made the charge practically provable, which it had not been before except by use of the rather unpopular 1624 act.

On the other hand, the traditional pro-choice line of “defend the 1967 act” is unlikely to work against an attack of this kind - unlike the success of this line in the past against Catholic-sponsored private members bills. The reason is that the present attack works by using the structural design of the 1967 act. That is, like the anti-union laws, and like the act of the same year (1967) which decriminalised male homosexual conduct in limited circumstances, the 1967 act works by leaving the underlying illegality intact, but providing a limited ‘defence’, which you have to bring yourself within. Within this framework, it is much too easy to chip away at the limits - whether by endless private members’ bills promoted by the abuse of the charitable status of religious bodies, or by the sort of ‘politico-legal hard cases make bad law’ scheme being tried now.

The issue is too often presented, as it is by Rishi Sunak’s spokespersons on the BBC, as one of the balancing of competing rights of the mother and of the ‘unborn’. But this is a radical misconception. In the first place, to have a right is to be able to choose whether to waive it or to insist upon it - and neither the foetus nor indeed the newborn can possibly waive anything. If abortion is to be criminalised, it has to be on the basis that it is morally objectionable in some way other than as a violation of rights. Further, the moral claims involved have to be within the framework that human biology enforces abortion under conditions of starvation and severe stresses affecting the mother.

And ‘pro-life’ campaigners are remarkably reluctant to oppose the industrial-scale killing of civilians by ‘collateral damage’ in air-strikes and sanctions regimes. If abortion is murder (it is not), this stuff is far more clearly murder.

The ‘right to life’ campaigners are, in reality, campaigning for the return of the authority of the Catholic moral entrepreneurs who pioneered the criminalisation of abortion in the central middle ages. They are thus actually - though they would never admit it - campaigning for the return of the Christian Brothers orphanages and their legacy of abuse, and the more general power of Catholic priests to abuse. These phenomena are the necessary other side of the Catholic claims about male purity and female disorder, which are supposed to require the criminalisation of abortion.