Self-induced abortion near full term

On 17 September a woman who had aborted her own baby in the final phase of her pregnancy was jailed for eight years. Sarah Catt had earlier pleaded guilty at Leeds Crown Court to administering a poison with intent to procure a miscarriage. She had taken an abortifacient when she was near or at full term, 39 weeks pregnant, to induce an early delivery. She had then claimed that the baby, a boy, had been stillborn and that she had buried his body.

The court was told that Mrs Catt had given up a child for adoption in 1999, had a termination with the agreement of her husband and had tried to terminate another pregnancy but missed the legal limit and had concealed another pregnancy from her husband before the child’s birth.

In his sentencing remarks the trial judge, Cooke J, gave Mrs Catt a one-third reduction in her sentence for having entered a guilty plea at an early stage, however, he told her that:

“You do not suffer from any mental disorder of any kind, as appears from the 27 page psychiatric report that I have read. I see no need for a report from a psychologist. This was a cold calculated decision that you took for your own convenience and in your own self-interest alone” (para 7).

Though he conceded that she was a good parent to her two children (para 14), he concluded that there was “no real mitigation”, that her actions had been somewhere between manslaughter and murder and that

“… a substantial period of imprisonment is required, regardless of  the effect on your family which I know will be considerable” (para 17).

Comment: The case has been the subject of considerable discussion, beginning with an even-handed analysis by Obiter J, who suggests that

“… in the absence of Catt suffering a mental illness, the learned judge appears to have been constrained by the statutory sentencing framework to a substantial sentence of imprisonment certainly in excess of 12 months.  Whether a starting point of 12 years is right is, of course, another matter. and may yet fall to be addressed in the Court of Appeal.”

Amanda Bancroft argues in The Guardian that, whatever the seriousness of the offence, twelve years reduced to eight for an early plea is “a hefty sentence” for any offence. Moreover, Mrs Catt’s

“… history of late-stage abortion, adoption and of live births from pregnancies kept secret until as late as possible, are suggestive of someone with – an understatement, this – some issues around pregnancy”.

Elizabeth Prochaska, also in The Guardian, concedes that the facts in this case were extreme, but argues nevertheless that

“… before prosecuting women for abortion and passing lengthy jail terms, we should ask whether our laws are coherent and, indeed, whether criminalisation is ever appropriate”.

Barbara Hewson, of Hardwicke Chambers, goes so far as to suggest that the charge under section 58 of the Offences Against the Person Act 1861 was misconceived. That section provides that

“Every woman, being with child, 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, … shall be guilty of felony” [emphasis added].

But, writes Hewson, a miscarriage is commonly understood to mean the loss of a pregnancy before foetal viability – which this was not – and there is no law prohibiting a woman from giving birth at home unattended. Moreover, the labour-inducing drug which Mrs Catt took, misoprostol, is commonly prescribed to induce labour and is not, therefore, a “poison or other noxious thing”. There was therefore a tenable argument that her actions fell outside the scope of the offence with which she was charged.

Perhaps surprisingly, given the publication for which he writes, I find myself largely in agreement with Francis Phillips, in the Catholic Herald, when he suggests that Mrs Catt needs help rather than punishment:

“The judge, Mr Justice Cooke, rightly took her action as a grave offence – but will she be helped by an eight-year prison sentence, leaving her husband to cope with two young children to whom, according to her barrister she was “a supportive and loving mother”? I know it is often hard to distinguish the degree of personal responsibility in seemingly calculated acts … but I honestly think that any woman with this long, unhappy and bizarre history of secretive pregnancies and abortions is in need of psychiatric help more than punishment.”

How, I wonder, do judges calculate the correct term of imprisonment in such cases anyway? Is eight years much more of a deterrent than seven – or, indeed, much more of a deterrent than six months? Is a woman intent on an illegal abortion likely to be deterred from that course in any event? And, worst of all to my mind, what about the children?

There are clearly offences, such as premeditated murder in cold blood, for which imprisonment can be the only proper punishment – even if it means rendering a young child, in effect, motherless. But is this particular case one of them?

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