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Prudent Justice: To Whom Should Penalties For Abortion Apply?

by Peter D. Williams

On Tuesday, a conviction was brought against a Northern Irish woman who, when she was 10-12 weeks pregnant, bought mifepristone and mifoprostol – abortifacients – over the internet and induced a miscarriage, killing her unborn son. After she pleaded guilty, Justice McFarland at Belfast Crown Court gave her a three month prison sentence, but even this was suspended over two years. Which is to say, as long as she does not try to commit the same crime within that time of probation, she will not have to serve the time in prison.

This was an unsurprisingly merciful ruling, given that the woman is reportedly now the mother of a young child, and “trying to put her life back together”. Yet it might also not have been, when we consider the testimony of the witnesses in the case, her then housemates. According to the account they gave to the BBC, they reported the crime to the police after finding the body of the woman’s baby son inside a black bag in a household bin, discarded as if he were garbage. As one of them relates:

‘“I was putting rubbish out in the bin and realised that must be it”, she said. “We saw the wee baby and I was like ‘oh my word’. You would never want to see it in your life. It was a full wee proper baby… About a week went by, the guilt of a baby in the bin was eating us up”.’

The same woman gave a fuller description in her interview with Deborah McAleese for the Belfast Telegraph:

‘“A bit later I was going to put rubbish out in the bin and there was the bag. When my other housemate came home on the Sunday we went and looked in the bag in the bin. There was the baby on a towel. I didn’t expect the baby to be so fully formed. The court was told she was 10 to 12 weeks pregnant [for an idea of what a 10-12 week baby looks like, see the picture above this piece, taken sadly after a miscarriage] when she obtained the tablets, but he seemed older. He had fingers, little toes. Even now I just have a picture in my mind of it. Its wee foot was perfect. Even now I feel sick. It has done so much damage to me mentally. It is something I can’t get out of my head. On bin collection day I couldn’t bring myself to put the bin out for collection. I didn’t want to throw a baby away. I didn’t know what to do”.’

This same testimony goes on to explain why, as news articles about the case reported (see the Guardian and the Huffington Post), the court was told that the two housemates were “taken back by the seemingly blasé attitude” that the woman displayed in her actions:

‘“She called the baby ‘the pest’ and kept saying she just wanted rid of it. She said: ‘I don’t want this inside me’… This is about her attitude. It was as if she was getting rid of a piece of clothing”, she stated. “There was absolutely no remorse. Even the way she was up and away out and doing her own thing a day after the abortion, while me and our other house-mate just walked around in shock. She wasn’t forced into anything”.’

Such careless callousness must have been especially horrifying for one housemate in particular, a 38-year old woman, who had actually suffered a miscarriage before the incident, and “offered to be legal guardian to the teenager’s child if she still did not want the baby after giving birth”. Again, as she relates in the Telegraph interview:

‘“I really tried to help her. I talked through a number of options but she just didn’t want to know” said the Belfast woman… We tried to help her. She was given lots of different options. We even tried to talk to her family to get them to help her, but we didn’t know them and she wouldn’t give us their contact details. People are saying we contacted police out of malice. That’s not true”, she added.’

Despite their clear compassion and concern, the two housemates have been reviled for having ‘grassed’ on their housemate. Something more than likely stoked by the predictable flurry of outrage from abortion lobby supportive publications about the sentence, despite its leniency. The now notoriously pro-abortion ‘Women’s section’ of the Daily Telegraph stoked the flames with the (technically correct, but practically inaccurate) headline, Northern Irish 21-year-old woman given prison sentence over abortion.

The particularly imbalanced nature of the indignation at the court’s action was due to the ruling coming not long after a weekend of almost universal condemnation of remarks made by the U.S. Presidential Candidate, Donald Trump. When cornered into answering a question by Chris Mathews of MSNBC, Trump stated that he believed that there should be “some kind of punishment” for women who seek abortions. The plutocratic demagogue said this because, despite his extreme pro-abortion history (even to the extent of supporting the legality of ‘partial-birth’ abortion, a practice that is as barbaric as it sounds) and more recent flip-flopping on the issue, he is running for the Republican candidacy and so necessarily claiming to be a ‘pro-lifer’.

Trump’s remark led, as so many of his comments do, to criticism from both sides of the political divide. American abortion lobbyists used it as an opportunity to shore up their false narrative that the right-to-life movement is part of a ‘war on women’. The reality of course, is that it simply shows the gross ignorance and intellectual incuriosity of Trump himself, and the utterly phoney nature of his ‘pro-life’ pretensions. U.S. right-to-lifers rightly issued strong denials that this in any way represented their point of view, and pointed out that Trump is himself woefully uninformed on the issue and not an authentic right-to-lifer.

As the philosopher and legal scholar Robert P. George stated:

‘“Mr. Trump seems to have stumbled onto the best possible way of signalling to true pro-lifers that he is not one of them. He has inadvertently embraced an idea that is falsely attributed to pro-life citizens by their opponents to weaken the pro-life cause by tarring pro-lifers as punitive, vindictive people who would send women, many of whom are desperate and frightened, and some of whom are acting under pressure or even coercion in seeking abortions, to prison.

Mr. Trump evidently wants to show us how genuine his conversion is by depicting himself as severely pro-life. But pro-lifers are compassionate, seeking the good of unborn children and their mothers, never pitting them or their interests against each other. We are interested in saving babies, not punishing mothers. And we know that we don’t need to punish mothers to save babies”.’

This position has been a consistent one from the U.S. right-to-life movement, and is at least easy to assert for later-term surgical abortions through Dilation and Curettage (D&C) or Dilation and Evacuation (D&E). There, it is possible to make the conceptual distinction between someone who procures an abortion, and someone who performs an abortion (i.e. the pregnant mother, and the abortionist). You might want to argue, as U.S. right-to-lifers commonly do, that procurement by a woman of an abortion should not be penalised, and so in the case of any surgical abortion, it would be the abortionist alone and not the pregnant mother who is subject to legal censure.

As the Northern Irish case illustrates, however, the situation gets more complicated when it comes to earlier-term medical abortions. There, the person procuring and performing the abortion are the same: the mother buys and takes the abortifacients herself.

For this reason and others, the American proposal that no woman should be prosecuted for abortion is not the legal reality of all jurisdictions that protect the right to life of unborn children. Indeed, right-to-life laws internationally are mixed in their approach to this issue.

Article 7 of the Polish Act on Family Planning, Human Embryo Protection and Conditions of Permissibility of Abortion 1993, which banned abortion in almost all cases, amended Article 149a of their Criminal Code not only to say that “[a] person who causes the death of a conceived child shall be subject to imprisonment for up to 2 years”, but immediately followed this clause with one that made clear that “[t]he mother of a conceived child shall not be subject to punishment”.

By contrast, Article 133 of the Penal Code of El Salvador penalises not only abortionists, but pregnant mothers who procure or perform an abortion on themselves, with a prison sentence of between two and eight years. This arguably has led to some injustice. Abortion lobbyists have weaponised for their own purposes the alleged incidence of women who, having gone through a miscarriage, are subsequently wrongly imprisoned for suspected abortion.

Yet such a situation need not be the case for a country with laws that carry the possibility of prosecuting a mother for her abortion. Irish law, at least since 2013, carries the possibility of penalising women for self-performing an abortion, but unlike in El Salvador no pregnant woman has ever been prosecuted for abortion there, and this is a country that has successfully saved the lives of thousands of its citizens:

What about Northern Ireland and the rest of the UK, then? The prosecution of the woman in Ulster came because of section 58 of the Offences Against The Person Act 1861 (OAPA), which carries legal penalties for a pregnant mother who, ‘with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent’. The Act does not apply to Scotland, but Abortion is nevertheless a crime under Scots Law. What this means is that women anywhere in the UK who choose to self-administer abortifacients – though, as per the American proposal, not those who merely procure an abortion – can be subject to legal penalty. (This is only a controversy in Northern Ireland because it is the only part of the Union to which the Abortion Act 1967 does not extend, and thus where there is no medical access to the legal destruction of an unborn child.)

The Northern Ireland conviction is not the only case in which this has happened, however, and the OAPA is not the only UK statute through which it has occurred. In December, as I have previously discussed, a County Durham woman named Natalie Towers was successfully prosecuted for ‘Child Destruction’ (a crime under the Criminal Justice Act 1945 in Northern Ireland and the Infant Life Preservation Act 1929 in England and Wales) for having taken contraction-inducing drugs when she was 32-34 weeks pregnant, in order to miscarry her unborn son. The baby consequently died of oxygen starvation.

Unlike in the Ulster case there was no great outcry about this, likely again as Trump had not yet caused an international controversy, and because the later stage of pregnancy made it a less sympathetic case for the abortion lobby to exploit. Be that as it may, this again illustrates the law as we have it in the UK: as in Ireland and other countries with stringent right-to-life protections, pregnant mothers who perform their own abortions, whether late (with the crime of Child Destruction) or early (with the crime of Abortion), can be prosecuted and convicted.

What ought we to think, then, of our country’s legal reality? This is an important question. The abortion lobby in the U.S. are questioning their right-to-life counterparts as to their position, and as a recent discussion on the Nolan Show showed, right-to-lifers will often be asked whether they support either a particular conviction or the possibility in law of one occurring. To be publicly credible, if not simply intellectually honest, this is not an issue that we can or should want to dodge.

As a matter of urgency then, we right-to-lifers must ask ourselves precisely what system we should prescribe with regards to women who cause their own abortion. Should we argue for the adoption of a Poland-style law by the repeal of section 58 of the OAPA (section 59 would still allow for the prosecution of abortionists), or should we affirm the system as we and Ireland have it? The answer we should come to, it seems to me at least, is that we ought to defend the current law. Not only is it the practically better system, but it is one that is more legally serious and morally just.

Today, more and more abortions are ‘medical’. Last year, for the first time, over half of all abortions in England and Wales were carried out by the use of abortifacients rather than surgical methods. The easiest and most private way to end the life of an unborn child is, and in the future will continue to be, by buying abortifacients online precisely as the woman did in the Northern Ireland case.

If we were to take out any legal penalty for pregnant mothers who perform their own abortion, it would mean that cases like that of Natalie Towers in her recent ‘Child Destruction’ conviction, would be impossible to prosecute. It might be possible to track and go after the providers of the drugs, but ultimately, no disincentive would exist for women who want to buy abortifacients and carelessly end the lives of their unborn children. Such a situation would not only lessen legal protection for babies in the womb, it would be morally simplistic and condescending.

It is undoubtedly true that many women who go for abortions are, as Prof. George pointed out, “desperate and frightened, and some… are acting under pressure or even coercion in seeking abortions”. He might also have added that many women abort their children under extraordinary pressure for material reasons (e.g. socio-economic disadvantage), and emotional ones (e.g. abandonment by their spouse or boyfriend, or pressure from him or from other relatives such as parents, etc.). Such women so lack social support that they feel they have no other ‘choice’ than abortion. Yet as the Northern Ireland case shows, not all are. There the woman was reportedly offered help, but she was dead set on ending the life of her unborn son, whom she callously destroyed. Natalie Towers similarly was only two months from birth, and yet chose to abort her baby at an obscenely late stage of pregnancy.

To treat all women who attempt to abort their child as if they are victims does not respect their moral agency. Many women are victims, but a minority are apparently inhumane in their motivations for engaging in abortion. As the housemates of the Northern Irish woman discovered, such people will not be dissuaded by offers of help. Some will not even be sufficiently put off by the threat of penal consequence.  Others like them will be, however, and hopefully deterred from using irresponsible providers who risk their health and even their life. It is just possible that the law as constructed has saved the lives of mothers as well as their unborn children, precisely by being as tough as it is. It does so by treating a mother’s choice of abortion with the seriousness that it warrants.

Indeed, this morally nuanced reality is precisely what the law as it is constructed is capable of navigating. After all, the law does not mandate conviction, never mind the fullest penalty. Rather, it allows courts to judge each case on its own merits. For an analogy for this situation, look at the working of the Suicide Act 1961. When the Crown Prosecution Service is considering whether to prosecute someone for assisting someone’s suicide, they are able to take into account whether doing so is in the public interest. If they do choose to do so, a court is able to discern whether it would be right to convict the person being prosecuted. Consequently, ‘mercy-killings’ will often not lead to conviction, whereas those who assist suicide from baser motivations can be properly penalised (and others like them disincentivised from engaging in similar actions).

Similarly, prosecutions for abortion can operate under precisely those humane principles. Were anyone to choose to take the life of their own child evidently for selfish reasons and without pity, our courts have the flexibility to penalise them strongly. On the other hand, if a woman has been, say, pressured by social conditions into aborting, or is – like the 21 year-old Northern Irish woman who was convicted the other day (the “blasé attitude” attitude her housemates noted notwithstanding) – a young mother having given birth to another baby, then the court can choose to convict but with a merciful sentence given the need that her child will have of her.

This evident benevolent flexibility, arguably exemplified in Tuesday’s ruling, is also the answer to the concern that legal penalties for pregnant mothers could further victimise women who have already been brutalised by the abortion itself, or might (as in El Salvador) be punished for the tragedy of miscarriage. Such occasions have not occurred anywhere in Ireland or the British Isles, and the kindlier and more evidence-based approach that the British courts take is likely to continue to exclude such injustice from occurring.

In that sense, the Northern Ireland case clearly does not provide how ‘antiquated’ or ‘cruel’ our laws are, but on the contrary, that they strike the ideal balance: the strength to strongly rebuke and set an example, and the compassion to be lenient when it is appropriate to be so. As things stand, courts of law are able to discern the situation a woman is in and act accordingly. They can choose to convict and penalise strongly, convict and reprove lightly, or acquit altogether. If this were ever to prove not to be the case, then that would form an argument for clear legal guidelines, not a removal of legal protections for the unborn.

Given the ideal balance our laws have the potential to strike, the only objection that anyone can have to them is that they believe abortion to something that should not be limited at all. Of course, that is exactly the sub-humanist agenda of the abortion lobby. British right-to-lifers, meanwhile, can not only defend but celebrate the operation of our (limited) legal protections for unborn children as being a ‘harsh law with a kind face’. Recent cases have only served to further support this point, and should give all campaigners for human equality the confidence to support and advocate more widely for laws like our own that are able to serve prudent justice, and mercy, both for mothers and for their unborn children.