In May 2020, two months into the pandemic, Carla Foster, a 44-year-old mother-of-three took pills at home to trigger an abortion. The foetus – a girl – was between 32 and 34 weeks old; a viable age for survival outside of the womb. On Monday, the mother was jailed for 28 months (with half of the sentence to be served on licence).

After the judgment was handed down, abortion campaign groups, women’s rights activists and a host of MPs immediately rushed to share their outrage at the decision. Stella Creasy tweeted that Foster had been jailed for having ‘an abortion without following correct procedures’ and called for a change in the law while Caroline Nokes, the chair of the women and equalities committee, said it made ‘a case for parliament to start looking at this issue in detail’.

It is a mercy that English women are able to access abortions with relative ease

This is a tragic case: a heartbreaking clash between healthcare and law in which a baby died and three other children lost their mother to prison. Mr Justice Pepperall, in his sentencing, ruled that Foster had known about her pregnancy in December 2019 but contacted the British Pregnancy Advisory Service on 6 May the next year. She told the service that she was seven weeks and four days pregnant to obtain abortifacient drugs – for which you must be less than ten weeks pregnant – and they were posted to her home. Evidently, this was a lie. And evidently, she broke the law.

But what purpose will be served by removing Foster from her existing children? Mr Justice Pepperall acknowledged that there are ‘no sentencing guidelines for this offence’ and that the ‘statutory maximum is life imprisonment’. He also said that he accepted that Foster ‘had a very deep emotional attachment to your unborn child and that you are plagued by nightmares and flashbacks to seeing your dead child’s face’. One of her children has special needs and, it was ruled, is reliant on her ‘love and support’.

In the face of these admissions, it is absolutely understandable that many believe the sentence was too harsh, and that she and her children would have been better served by a suspended sentence. And who benefits from a jail sentence? Foster is no danger to society. Indeed, she appears to have been given a custodial sentence because she didn’t originally plead guilty: the judge said that ‘had that been done, the sentence of imprisonment that I am now obliged to pass would in law have been capable of being suspended’.

When she had her abortion, Foster was living with her ex-partner and was pregnant with another man’s child. She was also looking after three young children – one with special needs – during the pandemic, a time when pressures were high. She was clearly distressed by the thought of ending her pregnancy, with the judge noting that her planning was ‘chaotic and showed how you struggled for some weeks to make a final decision before obtaining abortifacient drugs’. He also conceded that she was ‘in emotional turmoil as you sought to hide the pregnancy’. Perhaps what was needed here was compassion for a woman clearly disturbed by her actions, rather than a jail sentence and another broken family.

Nazir Afzal, a former chief crown prosecutor, told the Today programme that, ‘Had I been involved, had I been doing this particular case, I would not have prosecuted it’ because he would have factored in the ‘terrible choices’ that people were having to make during the pandemic. (It is worth noting that during the pandemic, abortion services were allowed to continue as usual – but that adjustments were made to allow women to take abortion pills at home to end pregnancies under the ten-week mark. Before Covid, they would have taken the pills at a clinic.)

Abortion law in this country has long been a contentious issue. Foster pleaded guilty under the 1861 Offences Against The Person Act, an archaic law which outlaws abortion in almost all cases. But under the 1967 Abortion Act, women in England, Scotland and Wales can have an abortion while they are up to 24 weeks pregnant – with exceptions where the woman is at risk of death or significant harm or where serious foetal abnormalities are detected. However, the 1967 act hasn’t decriminalised abortion, merely created a legal defence for having one.

Still, this country has some of the most lenient abortion legislation in the world. When abortions are denied, the consequences can be tragic. In 2018, I reported on a case in Ireland where a 34-year-old woman was denied an abortion, even though her baby had been diagnosed with a fatal foetal abnormality at 20 weeks. This was before Ireland voted to make abortion legal for women up to 12 weeks pregnant, and up to 24 weeks in exceptional circumstances.

The baby – a girl the woman had named Alex – had Patau’s Syndrome and had encountered significant problems with her growth, including issues with the development of her hands, heart, liver, and brain. She had a large cleft in the centre of her face, and had not developed a stomach. She would not survive outside the womb. Yet doctors, legally unable to give the woman an abortion, were left with no choice but to leave the woman pregnant until Alex died in utero – and could then be passed naturally. The clear and tangible damage that decision did to the woman I interviewed will stay with me forever.

With this in mind, it is a mercy that English women are able to access abortions with relative ease. Malta has a complete ban on abortion – in all cases – with doctors who perform one facing up to four years in jail. In Poland, it is only permitted where there is a risk to the woman’s health, or in cases of rape or incest. And abortions up to 12 weeks were, in practice, only really legalised in Northern Ireland in December, when Westminster passed legislation through a broken Stormont which would force the government to commission abortion services.

Public opinion on abortion in Britain shows that the country is among the most liberal in the world in its views: 85 per cent of people polled last week by YouGov support a woman’s right to an abortion. Almost half of people think the upper limit of 24 weeks is adequate, while only ten per cent think later-stage abortions should be allowed. Mr Justice Pepperall said ‘the vast majority’ of women make the decision to end their pregnancy ‘well before the 24-week limit imposed by law’. He also said that he believed Foster’s case would ‘reinforce the limit of that law’, rather than deterring women from seeking care within the time limit.

But it’s not necessary to ‘deter’ women from seeking late-stage abortions: it just doesn’t happen. In 2021, 89 per cent of all abortions in England and Wales were performed under ten weeks. Just 1 per cent were over 20 weeks.

It is almost impossible to feel dispassionate about abortion; the moral, ethical and emotional response from people on all sides of the debate is powerful. But at the heart of this case is a family tragedy, and it is a case marked by its extremity: the circumstances surrounding Foster’s actions were extremely rare. This doesn’t diminish that it was a late-stage abortion, well past the legal limit, but three children have lost their mother. It’s hard to see any benefit from that.