Mother-of-three, 44, jailed for illegally procuring her own abortion outside the legal limit has application to appeal against her 28-month prison sentence rejected

• Carla Foster’s case sparked widespread controversy earlier this month 

A mother-of-three jailed for illegally procuring her own abortion outside the legal limit is still behind bars today after seeing an application to appeal against her prison sentence rejected.

Carla Foster’s case sparked widespread controversy when she was jailed for more than two years earlier this month for taking pills which claimed the life of stillborn Lily.

The 44-year-old, who lived in the Staffordshire village of Barlaston, lied about how advanced her pregnancy was in order to obtain the abortion-causing drugs.

She was between 32 and 34 weeks pregnant when she received the medication from the British Pregnancy Advisory Service under the ‘pills by post’ scheme. 

The scheme, which was introduced during the Covid pandemic, allows medication to be supplied after a remote consultation for pregnancies of up to ten weeks.

Today, lawyers representing Foster submitted an appeal against her 28-month prison sentence, but the application – under the so-called slip rule – was rejected at Stoke-on-Trent Crown Court.

Carla Foster’s (pictured) case sparked widespread controversy when she was jailed for more than two years earlier this month for taking pills which claimed the life of stillborn Lily

Today, lawyers representing Foster (pictured outside court) submitted an appeal against her 28-month prison sentence, but the application – under the so-called slip rule – was rejected 

The slip rule gives courts the power to alter a sentence or order made within 56 days.

The defendant’s defence team argued that the sentence did not take into account the length of time for the case to get to court and the absence of any mental health assessment or psychiatric report from 2020.

But the application was thrown out by Mr Justice Pepperall, as the court was told ‘two detailed psychiatric reports’ had been made available.

The judge said: ‘The imprisonment of Carla Foster has sparked a passionate public debate against the law to criminalise late-term abortions. 

‘My duty was to apply the law as provided by Parliament and sentence in accordance with the guidelines given by the Court of Appeal.

‘I was aware of the fact that this matter had been hanging over her since May 2020 and I took the delay into account together with all the other aggravating and mitigating factors in this case in determining the appropriate sentence after trial was three years, rather than five years, imposed by the Court of Appeal in R V Catt. 

‘As it happens, the delay was similar in Catt. I conclude there are no proper grounds for re-considering sentence and I dismiss the application.’

Foster’s lawyers still have the option to take the case to the Court of Appeal following today’s decision. 

The application was made at Stoke-on-Trent Crown Court (pictured) this morning

Foster posted this message on Facebook at 3am, just hours before she was jailed

Foster posted this message on Facebook at 7pm, the day before her sentencing

Foster already had three sons – one of whom has special needs – before she became pregnant again in 2019. She had moved back in with her estranged partner when lockdown began, while carrying another man’s baby. 

How mother was prosecuted under 1861 law on ‘administering drugs or using instruments to procure abortion’

Carla Foster was initially charged with child destruction and pleaded not guilty.

She later pleaded guilty to an alternative charge of section 58 of the Offences Against the Person Act 1861, entitled ‘administering drugs or using instruments to procure abortion’ – and this was accepted by the prosecution.

The law states as follows:

‘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, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her 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, and being convicted thereof shall be liable to be kept in penal servitude for life’

Despite a plea for leniency from medical bodies and charities which wrote to the judge, she was jailed for two years and four months earlier this month.

The case sparked a major row involving abortion providers, MPs and pro-life campaigners – amid calls for Parliament to consider overhauling ‘out-of-date’ laws, and others highlighting ‘inadequacy of the safeguards for this regime of abortion’.

Hours before the sentencing, Foster posted a text image on Facebook which said: ‘No one has the right to judge you because no one knows what you’ve been through. They may have heard stories, but they didn’t feel what you felt.’

Foster also posted a text image saying: ‘Life has knocked me down a few times, it showed me things I never wanted to see. I experienced sadness and failures. But one thing for sure, I always get up.’ 

Most abortions in England are carried out before 24 weeks of pregnancy. They can only be carried out after 24 weeks in very specific circumstances such as if the mother’s life is at risk or if the child would have a severe disability when born.

The court heard that Foster had been having sex with two men and did not know which was the father when she became pregnant. 

She carried out internet searches from February 2020 onwards that included ‘How to lose a baby at six months’. In April she searched for ‘I need to have an abortion but I’m past 24 weeks’.

She spoke to a nurse practitioner at BPAS on May 6, 2020, leading the nurse to believe that she was around seven weeks pregnant. Her child, a girl, was born, not breathing, on May 11, 2020.

A post mortem examination recorded cause of death as stillbirth and maternal use of abortion drugs.

Foster was initially charged with child destruction and pleaded not guilty.

But she later pleaded guilty to an alternative charge of section 58 of the Offences Against the Person Act 1861, administering drugs or using instruments to procure abortion, which was accepted by the prosecution.

Ahead of the sentencing, a letter was sent to the court from leaders of health organisations calling for a non-custodial sentence.

The letter from leaders of medical groups such as the Royal College of Midwives, the Royal College of Obstetricians and Gynaecologists, and the Faculty of Sexual & Reproductive Healthcare, warned that imprisoning Foster could put other women off accessing telemedical abortion services.

The letter also said it could put off late-gestation women from seeking medical care or from being open and honest with medical professionals.

In response, judge Mr Justice Pepperall said in his sentencing remarks it would have been better if ‘the letter had not been written at all’.

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