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Heidi Crowter (centre) and Máire Lea-Wilson speaking to the media outside court in London

Woman with Down’s syndrome loses UK abortion law case

Heidi Crowter has argued allowing terminations up to birth if foetus has Down’s syndrome is discriminatory

A woman with Down’s syndrome who took Sajid Javid to court over the UK’s abortion law has lost her case in the high court.

Heidi Crowter, who brought the case alongside Máire Lea-Wilson , whose son Aidan has Down’s syndrome, and a child with Down’s syndrome identified only as A, had argued that allowing pregnancy terminations up to birth if the foetus has Down’s syndrome is discriminatory and stigmatises disabled people.

They challenged the Department of Health and Social Care over the Abortion Act 1967, which sets a 24-week time limit for abortions unless there is “substantial risk” of the child being “seriously handicapped”. At a two-day hearing in July they argued it interfered with the right to respect for private life in article 8(1) of the European convention on human rights (ECHR), including the decision to become or not to become a parent and “rights to dignity, autonomy and personal development of all three claimants”.

But in a ruling on Thursday [pdf] their case was dismissed by two senior judges, who ruled that the legislation was not unlawful and aimed to strike a balance between the rights of the unborn child and of women.

Lord Justice Singh and Mrs Justice Lieven said: “The issues which have given rise to this claim are highly sensitive and sometimes controversial. They generate strong feelings, on all sides of the debate, including sincere differences of view about ethical and religious matters. This court cannot enter into those controversies; it must decide the case only in accordance with the law.”

Crowter said it was a “sad” day but vowed to keep on fighting. Speaking alongside her husband, James Carter, outside the Royal Courts of Justice, she said: “The judges might not think it discriminates against me, the government might not think it discriminates against me, but I’m telling you that I do feel discriminated against and the verdict doesn’t change how I and thousands in the Down’s syndrome community feel.”

During the hearing Jason Coppel QC, representing the claimants, told the high court Down’s syndrome was the single largest justification for “late-term abortions” under the Abortion Act.

The judges said the evidence they had heard “powerfully” showed that there were families who positively wished to have a child even if they would have severe disabilities, but not every family would react that way.

They added: “[T]he ability of families to provide a disabled child with a nurturing and supportive environment will vary significantly. The evidence is also clear that, although scientific developments have improved and earlier identification may be feasible, there are still conditions which will only be identified late in a pregnancy, after 24 weeks.”

The judges said women other than the claimants could see their “choices […] curtailed (and potentially made criminal)”.

The ruling stated: “There is powerful evidence before this court of families which provide a loving environment to children who are born with serious disabilities but we do not know what would happen, in a counterfactual world, in which some women have been compelled by the fear of the criminal law to give birth to children who will not be loved or wanted.”

The issue was better debated in parliament than dealt with in litigation, they said.

Lea-Wilson said: “Today’s high court judgment effectively says that my two sons are not viewed as equals in the eyes of the law. People with Down’s syndrome face discrimination in all aspects of life, with the Covid pandemic really shining a light on the dangerous and deadly consequences this can have.”

She said the ruling condoned discrimination and would cement the belief in society that the lives of people with Down’s syndrome were not as valuable. She said she did not regret bringing the case because it had “helped raise awareness around the wonderful lives people with Down’s syndrome and their families lead”, and had helped to dispel some negative stereotypes.

Crowter compared the claimants’ battle to William Wilberforce’s fight against slavery. “[W]hen the going got tough, he kept going, and I’m going to do the same, because I want to succeed in changing the law to stop babies like me … being aborted up to birth, because it’s downright discrimination,” she said. “I’m not giving up, let’s do this.”

Down's syndrome
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U.K. Woman Sentenced to Prison for Abortion in Eighth Month of Pregnancy

The case has prompted heated debate in England, with some arguing that abortion pills should not be available by mail and others maintaining that abortion should be fully decriminalized.

By Emma Bubola

Reporting from London

A woman’s sentencing to prison this week for illegally using abortion pills to end a 32- to 34-week pregnancy is prompting a debate in England over the state of its abortion laws and whether a woman should ever be prosecuted for the procedure.

Adding to the debate is the fact that she was prosecuted under a law more than 160 years old. Some say that the law is too draconian, while others say the case illustrates the dangers of allowing abortion pills to be sent by mail.

What happened in the case?

On Monday, a court in Stoke-on-Trent, a city in central England, sentenced Carla Foster, 44, to 28 months for having caused her own miscarriage by taking abortion pills when she was in her eighth month of pregnancy.

The sentence includes up to 14 months in prison, after which she could serve the rest of her term on release if she meets certain conditions.

In early 2020, during the coronavirus pandemic, Ms. Foster, a mother of three, had moved back in with her long-term but estranged partner after becoming pregnant by another man, according to court documents.

The judge, Edward Brian Pepperall, wrote in his sentencing remarks that Ms. Foster had been in emotional turmoil as she sought to hide the pregnancy. She also repeatedly searched online for information about how to terminate her pregnancy in the first months of 2020, according to the judge.

That May, she obtained abortion drugs by mail after giving false information to Britain’s pregnancy advisory service, the judge wrote. Although abortion pills are available by mail through the service in the first 10 weeks of pregnancy, Ms. Foster’s internet searches indicated that she knew she was more than 24 weeks pregnant, the legal limit for most abortions, the court documents said.

Shortly after she took the drugs, her pregnancy ended in a stillbirth, according to the court. Paramedics were on the scene, and Ms. Foster told them that she understood that she would be required to speak to the police.

A post-mortem examination confirmed that the pregnancy was between 32 and 34 weeks, the judge wrote. A full-term pregnancy is about 40 weeks, or nine months.

Ms. Foster initially pleaded not guilty, but this March she pleaded guilty to a charge of “administering poison with intent to procure a miscarriage.”

The judge wrote in his decision that Ms. Foster was a good mother to her three children, including one with special needs, and he acknowledged that they would suffer from their mother’s imprisonment.

In handing down the sentence, the judge wrote, “The balance struck by the law between a woman’s reproductive rights and the rights of her unborn fetus is an emotive and often controversial issue.”

What are England’s abortion laws?

Abortion has been legal in England, Scotland and Wales since the Abortion Act of 1967, and access to the procedure is generally liberal, experts said.

Abortions are allowed in the first 24 weeks of pregnancy and must be approved by two doctors.

In the first 10 weeks, women can get an abortion by having two drugs prescribed to them, which in earlier years would have typically required a visit to a clinic. During the pandemic, when securing in-person services became both difficult and dangerous, the British government ruled that the drugs could be provided without an in-person appointment.

That decision was made permanent last August.

Later-term abortions are allowed in some exceptional cases, including when the woman’s health is in danger or in some cases of fetal abnormality.

Yet when Parliament passed the 1967 legislation allowing for abortions, it did not repeal an earlier law that had criminalized them. In rare cases, therefore, abortion can still be prosecuted as a criminal act.

Under a law passed in 1861, any woman who takes “poison” with an intent to cause her own fetus’s miscarriage “shall be guilty of felony” and liable “to be kept in penal servitude for life.”

That was the law under which Ms. Foster was sentenced, and hers is not an isolated case.

In his ruling, Judge Pepperall cited a 2013 decision in which a British court sentenced a woman to three and a half years in prison for causing her own miscarriage while about 38 weeks pregnant. And Stella Creasy, a lawmaker in the opposition Labour Party, said on BBC Two’s “Newsnight” current-affairs show on Monday that there had been 67 investigations under the 1861 act in the past decade.

What were the calls for decriminalization?

Caroline Nokes, a lawmaker in the governing Conservative Party who chairs the Women and Equalities Committee in the House of Commons, told the BBC after the court’s ruling that England was “relying on legislation that is very out of date.”

She said the sentencing “makes a case for Parliament to start looking at this issue in detail.”

Louise McCudden, the head of external affairs at MSI Reproductive Choices, a Britain-based women’s health organization, said in an interview that even if prosecution was rare, the law must be changed.

“Any case is too many,” she said.

Ms. Creasy, the Labour lawmaker, told BBC Two’s “Newsnight” that “Abortion is a health care issue, not a criminal matter.”

What were the calls for tighter rules?

Groups that campaign against abortion argued that the case illustrated the tragic consequences of the government’s decision to allow abortion pills to be sent by mail. They also said that Parliament should act based on the case, by further restricting the procedure.

“The government should urgently turn back the clock and end this disastrous policy of cheap, convenient, pills-by-post abortions,” Andrea Williams, the chief executive of Christian Concern, an advocacy group, said in a statement.

“At 32 weeks’ gestation, an unborn baby has a 95 percent chance of survival if delivered,” she added. “Our abortion law rightly recognizes that these precious humans deserve protection.”

James Mumford, an author who studies political theology, modern Catholic social thought, and bioethics , told BBC Two’s “Newsnight” on Monday that England had an “extreme abortion-on-demand culture.”

He called Ms. Foster’s case a natural consequence of making abortion pills available by mail, which he called an “utter disaster.”

What did medical experts say?

Some medical professionals also lobbied against sending Ms. Foster to prison, a penalty that they said might discourage other women from seeking access to abortion pills at home.

The court said it had received a letter from the president of the Royal College of Obstetricians and Gynecologists as well as other medical bodies urging a noncustodial sentence.

The judge responded that it was inappropriate for medical professionals to send such a letter, and that if they disagreed with the law, they should lobby Parliament to change it rather than judges who are charged with applying it.

Emma Bubola is a reporter based in London. More about Emma Bubola

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UK Human Rights Blog - 1 Crown Office Row

R. v. Foster: Reigniting the UK Abortion Law Debate

17 July 2023 by Guest Contributor

Last month marked one year since the startling repeal of Roe v Wade on the 24 th June 2022 – the day the US Supreme Court rowed back the right of American women to obtain an abortion. Almost exactly a year later, back in the UK, last month saw the conviction of Carla Foster for the late abortion of her 32-week-old foetus. The case has brought abortion law back into the public conscience this year and reignited the fears around the safety of women’s rights to abortion in the UK. Thousands of protestors descended on the steps of the Royal Courts of Justice days after the conviction was announced, fighting for a woman’s right to abortion to be enshrined in UK law and opposing the fact that, legally, abortion remains a crime in the UK.

Carla Foster’s case has given credence to warnings by some pro-life groups, such as Christian Concern, who have argued against the provision of at-home abortifacient drugs on the grounds that any such system is liable to be abused. Christian Concern even applied for a Judicial Review of the government’s decision to allow at-home medical abortions (Christian Concern v SSHSC), [1] raising concerns that such groups will leverage this new case in lobbying the government to restrict abortion access. [2]

What is the Status of Abortion under UK Law?

Put succinctly by the House of Commons Science and Technology Committee, ‘the 1967 Abortion Act did not make abortion legal, but conferred upon doctors a defence against illegality’. [3] Abortion is a crime under both the Offences Against the Person Act (OAPA) and the Preservation of Infant Life Act, with corresponding lawful grounds provided for; as such, there is no absolute right to abortion under British law. Though there has been a lot of noise in the media regarding Foster’s prosecution under a ‘Victorian’ or ‘archaic’ law, the age of OAPA does not in and of itself have any bearing on the relevance or worth of the legislation – especially considering the same legislation prohibits battery and GBH. There is, however, a conversation to be had about how these laws are being enforced in the modern day.

The 1967 Abortion Act, valid in England and Wales, stops criminal charges from being brought under OAPA for abortion if certain exceptions apply. Though there are multiple grounds under which abortion can be lawfully performed, government statistics show that over 98% of abortions are performed under Section 1(1)(a) of the act. [4] Section 1(1)(a) allows abortion in cases where ‘an abortion would involve less risk to the physical or mental health of the mother than the continuation of the pregnancy’, provided the pregnancy is before 24 weeks gestation and it has been approved by two doctors. In the first trimester, due to the risks of pregnancy and childbirth, it is almost always the case by definition that abortion is less risky than carrying the pregnancy to term. The British Medical Association (BMA) take the view that in practice, few, if any, women will fail to meet the medical criteria in the first trimester, rendering first trimester abortion effectively decriminalised. [5] There is no way to avoid the question, then, of why abortion is illegal at all; the BMA noted this, calling for first trimester abortion to be available on an informed consent basis like every other medical procedure. [6]

Though former Justice Secretary Dominic Raab expressed the view just last year that UK abortion law is a ‘settled’ matter, [7] it’s worth noting that even within the UK, we don’t have a consistent legal framework towards abortion. In Northern Ireland, there is a human-rights based right to abortion. Unlike in England and Wales, where legal abortion is considered an exception or legal defence to s58 and s59 OAPA, s9 of the Northern Ireland Executive Formation Act passed by Westminster in 2019 repealed this legislation and created a new human rights-based framework for abortion law. Dame Diana Johnson, who has previously attempted to reform OAPA with a backbench bill, [8] highlighted this discrepancy in Parliament last week, also noting the moratorium on abortion-related prosecutions in Northern Ireland. [9] There is little doubt that the inconsistency in abortion legislation (and therefore women’s rights) across the UK is problematic, leading to calls to bring English legislation in line with the Northern Irish framework. Since Westminster were able to – and actively sought to – establish this right in Northern Irish law, advocates are arguing for its replication in England and Wales. This move would add a further level of protection to a woman’s legal right to an abortion in the UK.

R. v. Carla Foster

The case last month that caught the country’s attention concerned Carla Foster, who, in the first weeks of lockdown, triggered a late-term abortion using the ‘pills by post’ scheme. She intentionally misled the British Pregnancy Advice Service (BPAS) in order to secure the drugs by indicating to them that she was only 7 weeks pregnant, rather than 32. Despite calling the ambulance immediately, the baby had been stillborn by the time paramedics arrived at the scene. Many are now learning that this is not an isolated case in the UK; last year, another woman was tried under the same grounds of ‘administering poison with intent to procure a miscarriage’ (s58 OAPA 1861) after she also took abortion-inducing drugs at home. In fact, Stella Creasy MP announced in Parliament during the aftermath of the media storm that there have been 67 prosecutions under this legislation in the last decade alone. [10]

Mr Justice Pepperall sentenced Ms Foster to 28 months, a minimum of 14 spent in custody. This sentence narrowly misses the limit to qualify for a suspended sentence, despite the consideration of mitigating factors ranging from her caring responsibilities for three other young children to her the extent of her remorse. Given that the average custodial sentence for violence against the person is 18.5 months, [11] Ms Foster’s sentence can easily be seen as harsh, though Pepperall J pointed out the problematic lack of any sentencing guidelines for the offence in his sentencing remarks. Instead, a single precedent from the Court of Appeal – R v Catt (2013), a similar case in which a woman at full-term pregnancy self-administered abortifacient drugs illegally obtained online – was used to determine the sentence.

Whether or not Judge Pepperall should, or even could, have reduced the sentence in order for Ms Foster to qualify for a suspended sentence is a polarising question of personal opinion. A letter sent to the court in April signed by various reproductive rights organisations urged the Judge not to impose a custodial sentence, and the public outrage would suggest many members of the public agreed. Since the CPS is responsible for only pursuing prosecutions ‘in the public interest’, can it be argued they shouldn’t pursue these cases? Or is it sensible to go further , and argue that the law itself should be brought in line with the public perception of abortion in the UK and fully decriminalised before 24 weeks?

The Case for Reform

Though the ethical case for reform is well established, there is also a legal case. Most abortion cases are brought to the European Court of Human Rights under Article 8 of the convention: the right to respect for private and family life, with Strasbourg case law supporting the idea that stringent restriction of abortion access is in violation of this right ( Tysiac v Poland, ABC v Ireland ). Article 8(2) ECHR demands that any interference with this right be both justified and necessary. Rosamund Scott, barrister and Professor of Medical Law, argues that since all women automatically meet the criteria for legal abortion under Section 1(1)(a) of the Abortion Act (1967) before 24 weeks, the criminalisation of abortion during this time period (with corresponding lawful grounds) is unnecessary , and therefore fails the test of necessity for Article 8 interference. [12] This would put the UK in contravention of the protection under Article 8 ECHR of a woman’s right to respect for her private life, and would necessitate legal reform. This is, however, an academic argument – the lack of JR or ECHR cases concerning the inadequacy of the UK’s legislation may suggest that practical issues with the potentially contravening legislation are rare since it has never been litigated to final resolution.

There is a growing legal consensus that not only is the current legislation around abortion incompatible with ECHR, but also that it is impractical and outdated. There’s a question as to whether current legislation is leading to prosecutions not in the public interest; the chief executive of gender equality charity the Fawcett Society, Jemima Olchawski, has asked whether ‘it is really […] in the public interest’ to investigate women for abortions and miscarriages when ‘prosecutions for rape are so devastatingly low’. [13]

It is important to note that the case for decriminalising abortion before 24 weeks would not exonerate Ms Foster, or legalise late-term abortions. Her actions would still be illegal, and in the eyes of many, rightfully so. Despite this, concerns echoed by both Alison Thewliss MP and Dame Diana Johnson suggest Ms Foster’s imprisonment could have a ‘chilling effect’ on abortion access in the UK, generating anxiety for both women and providers; a particularly salient concern following the notable recent erosions of abortion access in Poland and the USA. Baroness Helena Kennedy KC, a leading barrister and vocal advocate of law reform for women, has joined calls for the instantiation of a right to abortion before 24 weeks [14] while warning of the dangers of trying to legislate when emotions are high.

It is clear that the true picture of UK abortion law is at odds with public perception. A complex case has sparked a complex conversation, and it’s likely the hot topic of UK abortion law reform will persist. Perhaps it would be a debate best tackled head-on, but no discussion should be expected soon: ‘we believe [the current system] provides the right balance’, stated a spokesperson for Prime Minister Rishi Sunak. ‘There are no plans to change this’. [15]

Update 18 July 2023:

On Tuesday 18th July, the Court of Appeal (Criminal Division) allowed Carla Foster’s appeal against her sentence . Though the Court stated that they believed the custody threshold was passed, they held that the mitigation in her case was ‘exceptionally strong’ and reduced the sentence from 28 to 14 months. It was also decided the sentence should be suspended, allowing her immediate release from custody.

Giving judgment for the Court, Dame Victoria Sharp stated that Ms Foster needs ‘compassion, not punishment.’ In such a sad and complex case, this decision is welcomed. However, it must be noted that it does not alter the criminal position of abortion in UK law, which remains as set out in the original blog post. It is hoped that the extensive discourse surrounding Ms Foster’s case will publicise the need for legal reform, and may, with luck, begin to generate further political interest in modernising abortion law.

Catherine Churchill is a PGDL student and aspiring barrister

[1] https://www.judiciary.uk/wp-content/uploads/2020/09/R-Christian-Concern-v-SSHSC-judgment.pdf

[2] Melanie McDonagh, The Spectator. ‘Carla Foster’s Case isn’t a Miscarriage of Justice’

[3] https://publications.parliament.uk/pa/cm200607/cmselect/cmsctech/1045/1045i.pdf

[4] https://gov.uk/government/statistics/abortion-statistics-for-england-and-wales-2021/abortion-statistics-england-and-wales-2021

[5] https://www.bma.org.uk/media/3307/bma-the-law-and-ethics-of-abortion-report-march-2023-final-web.pdf

[6] Ibid

[7] https://www.bbc.co.uk/news/uk-politics-61981988

[8] https://healthpolicy-watch.news/uk-woman-jailed-under-1861-abortion-law/

[9] https://hansard.parliament.uk/commons/2023-06-15/debates/E4D63B08-4128-46D3-AFCD-EF8D377275EC/AbortionOffencesAgainstThePersonAct

[10] Ibid

[11] Ministry of Justice Criminal Justice Statistics quarterly: March 2021

[12] Scott, Rosamund. 2015. Risks, Reasons, & Rights: The European Convention on Human Rights and English Abortion Law. Medical Law Review, Vol 24, pp. 1-33

[13] https://www.bigissue.com/news/activism/thousands-march-abortion-reform-in-london-on-saturday/

[14] https://www.ft.com/content/9cc4e217-196b-41c1-8918-0c1dad3d5122

[15] https://www.itv.com/thismorning/articles/no-plans-for-abortion-law-reforms-following-backlash-over-jailed-mother

[1] https://publications.parliament.uk/pa/cm200607/cmselect/cmsctech/1045/1045i.pdf

[2] https://gov.uk/government/statistics/abortion-statistics-for-england-and-wales-2021/abortion-statistics-england-and-wales-2021

[3] https://www.bma.org.uk/media/3307/bma-the-law-and-ethics-of-abortion-report-march-2023-final-web.pdf

[4] Ibid

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Woman jailed over abortion – an explainer on what UK law actually says

A perdon holding up an image at a pro choice demonstration

This article, written by Claire Pierson , Senior Lecturer in Politics, was originally published in The Conversation:

Many people assume that because abortion is relatively accessible in England, it is not a crime. The fact that a woman has now received a 28-month prison sentence for taking abortion pills past the legal time limit shows that this assumption is wrong.

Abortion remains within the criminal law to some extent in almost every country globally, despite the fact that it is a safe and relatively common procedure. Laws can criminalise women and pregnant people, healthcare providers or anyone who helps a woman get an abortion. The sentencing in Poland of activist Justyna Wydrzyńska is one example. In March 2023, she received eight months community service for aiding an abortion seeker.

The 28-month sentence for the 44-year-old mother of three in England reflects the desperate need for a change to the law, in the form of decriminalisation.

In England and Wales, abortion is considered legal when it is performed by a registered medical practitioner, authorised by two doctors and meets certain conditions, such as risk to physical or mental health or risk of fetal anomaly. Abortion can only be performed after 24 weeks gestation in very limited circumstances.

The 1967 Abortion Act determines the situations in which an abortion is not a criminal act and the gestational time limits when one can be performed. The act was written in response to healthcare providers’ concerns about unsafe “backstreet” abortions, rather than out of concern for women’s bodily rights or autonomy.

Lawmakers did not want to make abortion available on request, therefore the sections of the 1861 Offences Against the Person Act which criminalise abortion were not repealed. Sections 58 and 59 make it a criminal offence to administer or supply drugs or use instruments to procure an abortion. The offences carry a maximum sentence of life imprisonment.

While the 1967 Abortion Act applies in Scotland, the Offences Against the Person Act does not. There, abortion is considered a crime in common law, developed by court precedent.

The recent prosecution is not an anomaly. In the past eight years, police in England and Wales have investigated at least 17 people for procuring their own abortion outside the law. The legacy of the 1861 act as a Victorian colonial era law continues to be felt globally, and still applies in countries such as the Gambia, Malawi and Jamaica.

Decriminalising abortion

Northern Ireland is the only region of the UK where abortion is decriminalised . The 1967 act was never extended to Northern Ireland.

After years of activist lobbying and an international inquiry by the UN committee for the elimination of discrimination against women, Westminster repealed sections 58 and 59 of the Offences Against the Person Act in 2019 – but only in Northern Ireland. The Abortion (Northern Ireland) Regulations 2020 now govern abortion access.

But while the law in Northern Ireland is now more liberal, issues remain around access to abortion services. Healthcare providers have had to organise themselves to provide medical abortions, rather than receiving government support and people seeking surgical abortions still have to travel to England.

The World Health Organization (WHO) and international human rights bodies have recommended that, at minimum, abortion be removed from the criminal law and decriminalised around the world.

The WHO defines this as “the complete decriminalisation of abortion for all relevant actors: removing abortion from all penal/criminal laws, not applying other criminal offences (e.g., murder, manslaughter) to abortion, and ensuring there are no criminal penalties for having, assisting with, providing information about or providing abortion”.

This approach recognises that making abortion a crime does not prevent abortion, nor does it protect people from having unsafe abortions. What it does do is impede access and influence how people who have abortions are viewed. Higher levels of stigma are often seen in regions with stricter abortion laws.

This article is republished from The Conversation under a Creative Commons license. Read the original article .

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At-Home Early Medical Abortions Made Permanent in England and Wales

Philippa Kemp DPhil Law

Time to read

On 30 August 2022, the UK government permanently amended the Abortion Act 1967 to allow Early Medical Abortion (EMA) treatment to be administered at home.[1] This blog post explains the significance of this change in removing barriers to accessing abortion treatment. It also discusses the recent R v Foster case, where a woman was jailed for taking abortion pills beyond the legal time limit.[2]

Legal access to EMA treatment

It is widely believed that abortion is legal in the UK, but having an abortion is still a criminal offence.[3] Legal abortion can only be obtained if the pregnancy presents certain risks: risks to the mental or physical health of the person or their family before 24 weeks gestation; or serious risks to the health or life of the pregnant person; or that the future child may be born with a serious handicap . [4] Abortion treatment can involve a variety of methods depending on the length of the pregnancy. EMA is commonly prescribed as a method of abortion in the UK during the first 10 weeks and currently involves the administration of two pills at separate intervals: mifepristone and misoprostol .[5] Pregnancies of a longer gestation (>10 weeks) are terminated using different methods.

When EMA was first introduced in the 1980s, the law required both pills to be provided under medical supervision, so patients receiving EMA treatment had to travel to a clinic at least twice: once for each pill.[6] This travel requirement was at best inconvenient and at worst a barrier to accessing abortion treatment for some, as detailed below, even if they met the legal conditions for accessing abortion. In 2018, the law changed to allow the second pill (misoprostol) to be taken at other approved locations, like the patient’s home. Medical supervision was still required, usually by teleconsultation, but the medication could be provided by post to avoid the patient having to travel. However, the first pill (mifepristone) still had to be administered in a clinic or hospital. In March 2020, the COVID-19 lockdown restrictions on movement limited people’s access to in-person medical treatment, which severely limited access to EMA. To address this, temporary measures were introduced in March 2020 to allow the first pill to also be provided remotely. As a result, EMA treatment could be provided to patients completely remotely for the first time in England, Scotland, and Wales, known as Telemedical Early Medical Abortion (TEMA). This change was not adopted in Northern Ireland. This temporary change was only intended to last until all COVID-19 pandemic restrictions had been lifted, but it was made permanent in August 2022.[7] Despite the fact that women are very rarely found to have committed an offence under the Act, it is still the case, as the decision in R v Foster demonstrates, that failure to comply with the legal limits of EMA treatment can still result in criminal prosecution.

Necessity of legal requirements

Prior to the change in the law, the Abortion Act 1967 required all abortion treatment to be carried out in an approved clinic or hospital.[8] This rule continued to apply to EMA until the revisions in 2018 and 2020.[9] It is surprising that the law was revised only recently, because there has been extensive research in the last two decades which demonstrates the safety and efficacy of TEMA treatment.[10] TEMA treatment was standard in the US in 2008, but UK law did not permit this until over a decade later.[11] Therefore, this legal requirement appears to have been retained unnecessarily.

It has been a long-term aim of the NHS to practice and promote evidence-based medicine, and to this end research in the UK is encouraged and supported by bodies such as the National Institute for Health Research (NIHR) and Medical Research Council (MRC).[12] Within this context, it does not make sense why the aforementioned legal requirement was changed almost two decades after the publication of research demonstrating the safety and efficacy of TEMA. It is interesting to note that the change in March 2020 was introduced due to the limitations on accessing treatment during the COVID-19 lockdowns and not purely based on clinical evidence. As pointed out by Clare Murphy in 2018, ‘there is no clinical reason to deny women the option of using this medication at home,’ but no justification has been provided for why the clinical evidence was not acted upon.[13] Sheldon and Parsons and Romanis suggest that the original requirement may have been politically motivated because it ‘constitutes a part of the political case for tight regulatory control of abortion’ which stems from the culture of abortion exceptionalism in the UK which treats pregnant bodies ‘as a site of public and political contention’.[14]

Practical barriers to treatment

Prior to March 2020, patients were required to travel to a clinic or hospital to access EMA treatment, which created practical barriers to accessing treatment.

Socio-economic barriers

The costs of travelling to appointments are harder to bear for patients from lower socio-economic backgrounds, and finding time to attend appointments is an issue for those with work or childcare commitments, as pointed out by Parsons and Romanis.[15] In addition to this, individuals with mobility issues may also find that travel is more costly and time consuming. Furthermore, as the WHO points out, some may have to travel greater distances than others to access treatment, thus compounding these barriers. For some individuals, several of these barriers may apply.

When these barriers apply, individuals may be forced to delay when they can access treatment or consider if they can afford to access treatment at all.

When treatment is delayed, this can have significant consequences for treatment options and health outcomes. Some abortion treatments are only offered before certain timepoints, for example EMA is offered at <10 weeks gestation, so a delay in accessing treatment may bar a patient from certain methods of abortion which may be easier or safer. If a person is eligible to receive a legal abortion then there must be an identifiable risk involved in the pregnancy, because a risk is a requirement under all the legal abortion grounds.[16] Any delay in receiving treatment may exacerbate this risk, which is especially concerning if it is a risk to the pregnant person themselves. Furthermore, because of the short legal timelines for accessing abortion, a delay may result in a patient being denied a legal abortion altogether.

If someone is struggling to afford the cost of travel, or is physically unable to travel, then this may prevent them from accessing treatment at all. Similarly, if treatment is not provided when there is an identifiable risk in the pregnancy, this could lead to increased risk and serious health outcomes—including death—for the pregnant person. As many have argued, these delays and barriers would be alleviated if EMA was provided remotely.[17]

It is clear that the travel requirement can result in increased health risks and outcomes. However, many other forms of medical treatment in the UK can only be accessed in a clinic or hospital, and so patients are required to travel to access treatment. This requirement may be justified in some scenarios, for example because it is unsafe to administer treatment outside of these settings. Even though this may create practical barriers to accessing treatment, there is no safe alternative. However, as outlined above, the administration of TEMA was shown to be safe long before March 2020, and therefore the retention of this legal requirement was unnecessary. As such, the practical barriers created by the legal requirement were unjustified and should have been removed earlier.

Experience of receiving treatment

It is also important to note that abortion treatment, including EMA, can be a difficult and unpleasant experience.[18] Parsons and Romanis point out that when treatment is administered within a clinic, the miscarriage may be induced while the patient is travelling home.[19] This has caused discomfort and embarrassment for patients experiencing this in public, for example when travelling by public transport.[20] In addition to the miscarriage itself, common side effects include diarrhoea (sometimes severe), cramps, pelvic inflammatory disease, uterine disorders, vaginal haemorrhage (sometimes severe), and vomiting, amongst others.[21] More severe side effects may also occur. Research has shown that some individuals prefer a setting that is private and comfortable, with family present, and without the ‘shame of the procedure’.[22] The legal provision for TEMA provides them with that option.

Concerns with self-reporting: R v Foster

In the recent case of R v Foster , a woman received TEMA treatment after claiming that she was less than 10 weeks pregnant. She was initially able to obtain a legal abortion under the first ground of the Abortion Act 1967—as described above—which permits abortion before 24 weeks. It later transpired that she had lied about the duration of her pregnancy and was actually 32-34 weeks pregnant—well beyond the time limit for accessing a legal abortion under this ground and also beyond the NHS time limit for TEMA treatment. She was charged with procuring an illegal abortion under section 58 of the Offences Against the Person Act (OAPA) 1861 and sentenced to 28 months' imprisonment.[23]

Before TEMA was permitted in the UK, one of the objections to allowing it was that pregnancies would not be accurately dated. Before TEMA, patients would travel to a clinic for EMA and undergo a scan to confirm that the pregnancy was less than 10 weeks along before receiving treatment. With TEMA, no scan or in person medical check takes place, and pregnancy dating is based on self-reporting by the pregnant person. The concern was that women would report that they were less far along in the pregnancy than they actually were—whether by intentionally lying or by mistake—and this might cause women to 1) access EMA treatment beyond the NHS 10 week time limit, which may present health risks, and more importantly 2) may allow abortion to be obtained beyond the time limits allowed by the Abortion Act 1967. Before R v Foster , these concerns were largely considered to be unfounded. An expert witness from the Royal College of Obstetricians and Gynaecologists (RCOG) stated that abortion providers ‘have well developed and effective systems for assessing and managing risks’, and research has shown that people are generally able to date their gestation with reasonable accuracy.[24] The possibility of someone lying to obtain TEMA treatment was considered a possibility but deemed to be an unlikely and exceptional occurance.[25]

However, the case of R v Foster has made these concerns a reality. This case has caught the attention of the public: it has been reported on the frontpage of national news websites, and petitions from high profile groups (including RCOG) were sent to the judge.[26] This case has created a public discourse, with people primarily being outraged at either the fact that abortion remains a criminal offence or that it appears easy to obtain illegal abortion treatment from the NHS. In the context of TEMA, the question that arises is whether this case is enough to demonstrate that TEMA is too open to abuse to be workable. But is one case really enough to conclude this? In order to answer this, we must balance the issues with EMA identified with this case against the beneficial removal of barriers to abortion treatment.

As outlined above, before TEMA there were substantial financial and time barriers to accessing legal abortion treatment. They affected a large portion of the UK population—people with childbearing potential from lower socio-economic backgrounds or with children. These barriers were alleviated by the introduction of TEMA, but they would return if it was banned.

It is important to remember that abortion is not a right in the UK and it remains a criminal offence (outside the exceptions under the Abortion Act 1967). TEMA appears to provide an opportunity for individuals to commit this offence by lying about how far along their pregnancy is to access this treatment, which may cause the number of illegal abortions to rise. This poses a problem for legal compliance, especially because it may be difficult to detect when the law has been broken. However, it is argued that even with this opportunity, this behaviour will likely be deterred because of the punishment attached to this law. The maximum sentence for illegal abortion is life imprisonment, which is currently the most severe single punishment in UK criminal law.[27] It is normal for laws to be backed up by punitive measures, such as imprisonment, to act as deterrents. However, if the law goes beyond this to ban procedures that may make it easier to break the law, then it is going too far. It is not justifiable for the law to control medical treatment just in order to promote compliance with the law, because this is not enough to override the importance of maintaining people’s access to safe and convenient health treatment. This is especially important where, as explained above, the aforementioned barriers which caused people to delay treatment had negative impacts on people’s health outcomes.

Finally, R v Foster is just one case. Between April 2020 and June 2022, since TEMA was permitted, 249,576 abortions have been terminated using TEMA in England and Wales.[28] This case is the only known abuse of this service, so if we balance this against all the reasons above, then it is not enough to justify changing the law to prohibit TEMA. If the abuse of TEMA to break abortion law becomes increasingly frequent, this debate may need revisiting. But for now, R v Foster is just an exceptional case.

The temporary change to the law in March 2020 to allow EMA treatment removed the unnecessary barriers to accessing treatment and brought treatment practice in line with current evidence-based medical practices. These new rules were due to revert back at the end of the COVID-19 pandemic, and so the permanent implementation of the law in August 2022 was crucial in preventing the reappearance of these barriers. The case of R v Foster gives legitimacy to concerns that remote TEMA treatment is open to abuse and may allow illegal abortions to be obtained, but this blog post argues that this one case is not significant enough to warrant overturning the benefits gained by permitting TEMA treatment.

Department of Health and Social Care, ‘At home early medical abortions made permanent in England and Wales’ .
R v Foster sentencing remarks .
Offences against the Person Act (OAPA) 1861, ss 58-59.
Abortion Act 1967, s 1.
See National Health Service, ‘Abortion: What Happens’ .
Previously Abortion Act 1967, s 3 (before revision).
Department of Health and Social Care, ‘Health Update: Statement Made on 24 February 2022’ .
Previously Abortion Act 1967, s 3 (before revision).
As outlined above.
For UK research: Haitham Hamoda and others, ‘The acceptability of home medical abortion to women in UK settings’ (2005) 112(6) BJOG 781; for US research: EA Schaff and others, ‘Lowdose mifepristone followed by vaginal misoprostol at 48 hours for abortion up to 63 days’ (2000) 61(1) Contraception 41; World Health Organisation, Health worker roles in providing safe abortion care and post-abortion contraception (2015); World Health Organisation, Medical management of abortion (2019).
RJ Gomperts and others, ‘Using telemedicine for termination of pregnancy with mifepristone and misoprostol in settings where there is no access to safe services’ (2008) 115(9) BJOG 1171.
See for example Department of Health, Research and development: towards an evidence-based health service (1995).
Clare Murphy (director of external affairs at the British Pregnancy Advisory Service) as quoted in Sanya Burgess, ‘Wales to allow women to take second abortion pill at home’ ( Sky News , 29 June 2018).
Jordon A Parsons and Elizabeth Chloe Romanis, Early medical abortion, equality of access, and the telemedical imperative (OUP 2021) ch 2, ch 3 at 3.2.1; Sally Sheldon, ‘The medical framework and early abortion in the U.K.: how can a state control swallowing?’ in Rebecca J Cook, Joanna N Erdman, and Bernard M Dickens (eds), Abortion Law in Transnational Perspective: Cases and Controversies (University of Pennsylvania Press 2014) 189.
Parsons and Romanis (n 14) 3.4.3.
Parsons and Romanis (n 14); Chris Baraniuk, ‘The Story of Abortion Pills and How They Work’ ( Wired Health , 25 May 2022) accessed 22 Feb 2023.
Baraniuk (n 17).
Parsons and Romanis (n 14).
Jordan Parsons, ‘2017-19 governmental decisions to allow home use of misoprostol for early medical abortion in the UK’ (2020) 124(7) Health Policy 679.
National Institute for Health and Care Excellence (NICE), ‘Misoprostol’ ; NICE, ‘Mifepristone’ .
Kate Levine and Sharon T Cameron, ‘Women’s preferences for method of abortion and management of miscarriage’ (2009) 35(4) J Fam Plann Reprod Health Care 233.
R v Foster (n 2)
See for example Dana Schonberg and others, ‘The accuracy of using last menstrual period to determine gestational age for first trimester medication abortion: a systematic review’ (2014) 90 Contraception 5, 480; Parsons and Romanis (n 14) 5.2.1.
Parson and Romanis (n 14).
See for example Riyah Collins and PA Media, ‘Mother jailed for taking abortion pills after legal limit’ ( BBC News , 12 June 2023), Tobi Thomas, ‘Outrage at jail sentence for woman who took abortion pills later than UK limit’ ( The Guardian , 12 June 2023).
OAPA 1861, s 58.
This number does not include Scotland or Northern Ireland, and data after June 2022 for England and Wales is not yet available; Department of Health and Social Care, Abortion statistics, England and Wales: 2020 ( GOV.UK , 10 June 2021); Office for Health Improvement and Disparities, Abortion statistics, England and Wales: 2021 ( GOV.UK , 21 June 2022); Office for Health Improvement and Disparities, Abortion statistics for England and Wales: January to June 2022 ( GOV.UK , 22 June 2023).

Case report
Open access
Published: 14 June 2019

“Regardless, you are not the first woman”: an illustrative case study of contextual risk factors impacting sexual and reproductive health and rights in Nicaragua

Samantha M. Luffy 1 ,
Dabney P. Evans ORCID: orcid.org/0000-0002-2201-5655 1 &
Roger W. Rochat 1

BMC Women's Health volume 19 , Article number: 76 ( 2019 ) Cite this article

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Rape, unintended pregnancy, and abortion are among the most controversial and stigmatized topics facing sexual and reproductive health researchers, advocates, and the public today. Over the past three decades, public health practicioners and human rights advocates have made great strides to advance our understanding of sexual and reproductive rights and how they should be protected. The overall aim of the study was to understand young women’s personal experiences of unintended pregnancy in the context of Nicaragua’s repressive legal and sociocultural landscape. Ten in-depth interviews (IDIs) were conducted with women ages 16–23 in a city in North Central Nicaragua, from June to July 2014.

Case presentation

This case study focuses on the story of a 19-year-old Nicaraguan woman who was raped, became pregnant, and almost died from complications resulting from an unsafe abortion. Her case, detailed under the pseudonym Ana Maria, presents unique challenges related to the fulfillment of sexual and reproductive rights due to the restrictive social norms related to sexual health, ubiquitous violence against women (VAW) and the total ban on abortion in Nicaragua. The case also provides a useful lens through which to examine individual sexual and reproductive health (SRH) experiences, particularly those of rape, unintended pregnancy, and unsafe abortion; this in-depth analysis identifies the contextual risk factors that contributed to Ana Maria’s experience.

Conclusions

Far too many women experience their sexuality in the context of individual and structural violence. Ana Maria’s case provides several important lessons for the realization of sexual and reproductive health and rights in countries with restrictive legal policies and conservative cultural norms around sexuality. Ana Maria’s experience demonstrates that an individual’s health decisions are not made in isolation, free from the influence of social norms and national laws. We present an overview of the key risk and contextual factors that contributed to Ana Maria’s experience of violence, unintended pregnancy, and unsafe abortion.

Peer Review reports

Rape, unintended pregnancy, and abortion are among the most controversial and stigmatized topics facing sexual and reproductive health researchers, advocates, and the public today. Over the past three decades, however, the international community, States, and advocates have made great strides to advance our understanding of sexual and reproductive rights and how they can be protected at the national and international levels. The 1994 Cairo Declaration began this process by including sexual health under the umbrella of reproductive health and recognized the impact of violence on an individual’s sexual and reproductive health (SRH) decision-making. [ 1 ] One year later, the 1995 Beijing Platform for Action specifically addressed the issues of unintended pregnancy and abortion by emphasizing that improved family planning services should be the main method by which unintended pregnancies and unsafe abortions are prevented. [ 2 ]

A recent World Health Organization (WHO) report on the relationships between sexual health, human rights, and State’s laws sets the foundation for our contemporary understanding of these issues. The 2015 report describes sexual health as, “a state of physical, emotional, mental and social well-being in relation to sexuality.” [ 3 ] That state includes control over one’s fertility via access to health services such as abortion; it also includes the right to enjoy sexual experiences free from coercion, discrimination, and violence. [ 3 ] Whether experienced alone or in combination, rape, unintended pregnancy, and abortion are important SRH issues on which public health can and should intervene.

In the public health field, case studies provide a useful lens through which to examine individual women’s sexual and reproductive health experiences, particularly those of rape, unintended pregnancy, and unsafe abortion; an in-depth analysis of these personal experiences can identify contextual risk factors and missed opportunities for public health rights-based intervention. This type of analysis is especially cogent when legal policies and social factors, such as gender inequality, may influence one’s SRH decision-making process. On an individual level, bearing witness to women’s stories through in-depth interviews helps document their lived experience; surveying these experiences within the context of laws related to SRH provides important evidence for the impact of such policies on women’s well-being.

We present the case of a 19-year-old Nicaraguan woman who was raped, became pregnant, and almost died from complications resulting from an unsafe abortion. Her complex experience of violence, unintended pregnancy, and unsafe abortion represent a series of contextual factors and missed opportunities for public health and human rights intervention. Ana Maria’s story, told through the use of a pseudonym, takes place in a city located in North Central Nicaragua – a country that presents unique challenges related to its citizens’ fulfillment of their sexual and reproductive health and rights.

Violence against women in Nicaragua

Along with 189 States, Nicaragua is a party to the United Nations (UN) Convention on the Elimination of All Forms of Discrimination against Women, which includes State obligations to protect and promote the health and well-being of Nicaraguan women. [ 4 ] As defined by human rights documents, the right to health includes access to health care services, as well as provisions for the underlying social determinants of health, such as personal experiences of structural violence. [ 5 ]

In the Nicaraguan context, political and sociocultural institutions support unequal power relations between genders. [ 6 ] Machismo is one such form of structural violence that perpetuates gender inequality and has been identified as a barrier to SRH promotion in Nicaragua. [ 7 , 8 ] The term ‘ machismo ’ is most commonly used to describe male behaviors that are sexist, hyper masculine, chauvinistic, or violent towards women. [ 9 ] These behaviors often legitimize the patriarchy, reinforce traditional gender roles, and are used to limit or control the actions of women, who are often perceived as inferior. [ 10 ]

The vast majority (89.7%) of Nicaraguan women have experienced some form of gender-based violence during their lifetime, which poses a serious public health problem. The latest population-based Demographic and Health Survey showed that at least 50% of Nicaraguan women surveyed had experienced either verbal/psychological, physical, or sexual violenceduring their lifetime. An additional 29.3% of women reported having experienced both physical and sexual violence at least once, while another 10.4% reported having experienced all three types of violence. [ 11 ]

In 2012, Nicaragua joined a host of other Central and South American countries that have implemented laws to eliminate all forms of violence against women VAW, including rape and femicide. [ 12 ] Nicaragua’s federal law against VAW, Law 779, intends to eradicate such violence in both public and private spheres. [ 13 ] On paper, Law 779 guarantees women freedom from violence and discrimination, but it is unclear if the law is being adequately enforced; it has been reported that some women believe VAW has increased since the law’s implementation. [ 14 ]

Before Law 779, violent acts like rape, particularly of young women ages 15–24, were endemic in Nicaragua. Approximately two-thirds of rapes reported in Nicaragua between 1998 and 2008 were committed against girls under 17 years of age; most of these acts were committed by a known acquaintance. [ 15 ] Due to a lack of reporting and to culturally propagated stigma regarding rape, no reliable data suggest that Law 779 has been effective in reducing the incidence of rape in Nicaragua. For women who wish to terminate a pregnancy that resulted from rape, access to abortion services is vital, yet completely illegal. [ 16 ] In contrast, technical guidance from the WHO recommends that health systems include access to safe abortion services for women who experience unintended pregnancy or become pregnant as a result of rape. [ 17 ]

Family planning and unintended pregnancy in Nicaragua

Like violence, unintended pregnancies -- not only those that result from rape -- pose a widespread public health problem in Nicaragua. National data suggest that 65% of pregnancies among women ages 15–29 were unintended. [ 11 ] Oftentimes, unintended pregnancy results from a complex combination of social determinants of health including: low socioeconomic status (SES), low education level, lack of access to adequate reproductive health care, and restrictive reproductive rights laws. [ 18 , 19 , 20 ] Nicaraguan women of low SES with limited access to family planning services are at an increased risk of depression, violence, and unemployment due to an unintended pregnancy. [ 19 , 20 ]

The UN Committee on the Elimination of all forms of Discrimination Against Women (CEDAW) has expressed concern regarding the lack of comprehensive sexual education programs, as well as inadequate family planning services, and high rates of unintended pregnancy throughout Nicaragua. [ 21 ] Due to a lack of sexual education, Nicaraguan adolescents, if they use contraceptives like male condoms or oral contraceptive pills, often do so inconsistently or incorrectly. [ 22 ]

Deeply rooted cultural stigma surrounding unmarried women’s sexual behavior contributes to the harsh criticism of young women in Nicaragua that use a method of family planning or engage in sexual relationships outside of a committed union. [ 18 , 22 ] Also, young women who are not in a formal union may experience unplanned sex (consensual or nonconsensual) and are unlikely to be using contraception, which further increases the risk of unintended pregnancy. [ 22 ] These social and cultural factors, in conjunction with restrictive reproductive rights laws, may contribute to a high incidence of unintended pregnancy among young Nicaraguan women.

The total ban on abortion in Nicaragua

Compounding the economic, social, and emotional burden of unintended pregnancy on women’s lives is the current prohibition of abortion in Nicaragua. In 2006, the National Assembly unanimously passed a law to criminalize abortion, which had been legal in Nicaragua since the late 1800s. [ 20 ] Researchers often refer to this law as the “total ban” on abortion. [ 20 , 23 ] The total ban prohibits the termination of a pregnancy in all cases, including incest, rape, fetal anomaly, and danger to the life of the woman. Laws that prohibit medical procedures are, by definition, barriers to access; equitable access to safe medical services is a critical element of the right to health. [ 3 , 5 ] The UN Committee on Civil and Political Rights (CCPR) has also recognized the discriminatory and harmful nature of criminalizing medical procedures that only women undergo. [ 24 ]

Nicaragua is one of the few countries in the world to completely ban abortion in all circumstances. In States where illegal, abortion does not stop. Instead, women are forced to obtain abortions from unskilled providers in conditions that are often unsafe and unhygienic. [ 25 ] Unsafe abortions are among the main preventable causes of maternal morbidity and mortality worldwide and can be avoided through decriminalization of such services. [ 26 ]

The Nicaraguan ban includes serious legal penalties for women who obtain illegal abortions, as well as for the medical professionals who perform them, which can have profound negative effects on women’s health. [ 20 , 23 ] Women who need or want an abortion face not only the health risks that accompany an unsafe procedure, but additional criminal penalties. The total ban on abortion violates the human rights of both health care providers and women nationwide, as well as the confidentiality inherent in the patient-provider relationship. [ 20 ] It also results in a ‘chilling effect’ where health care providers are unwilling to provide both abortion and postabortion care (PAC) services for fear of prosecution. [ 20 ]

In response to the negative impacts of the total ban on maternal morbidity and mortality in Nicaragua, as well as detrimental effects on women’s physical, mental, and emotional health, CEDAW has recommended that the Nicaraguan government review the total ban and remove the punitive measures imposed on women who have abortions. [ 21 ] While the Nicaraguan government may not view abortion as a human right per se, women should not face morbidity or mortality as a result of illegal or unsafe abortion. [ 27 ]

Criminalizing abortion also increases stigma around this issue and significantly reduces people’s willingness to speak openly about abortion and related SRH services. Qualitative research conducted in Nicaragua suggests that women who have had unsafe abortions rarely discuss their experiences openly due to the illegal and highly stigmatized nature of such procedures. [ 18 ] Therefore, the overall aim of the study was to better understand young women’s personal experiences of unintended pregnancy in the context of Nicaragua’s repressive legal and sociocultural landscape. Ten in-depth interviews (IDIs) were conducted with women ages 16–23 in a city in North Central Nicaragua from June to July 2014. This private method of data collection allowed for the detailed exploration of each young woman’s personal experience with an unintended pregnancy, including the decision-making process she went through regarding how to respond to the pregnancy. Given the personal nature of this experience – including the criminalization and stigmatization of women who obtain abortions – IDIs allowed the participants to share intimate details and information that would be inappropriate or dangerous to share in a group setting. One case, presented here, emerged as salient for understanding the intersections of violence, unintended pregnancy, and abortion – and the missed opportunities for rights-based public health intervention.

Emory University’s Institutional Review Board ruled the study exempt from review because it did not meet the definition of “research” with human subjects as set forth in Emory policies and procedures and federal rules. Nevertheless, procedural steps were taken to protect the rights of participants and ensure confidentiality throughout data collection, management, and analysis. The first author reviewed the informed consent form in Spanish with each participant and then acquired each participant’s signature and verbal informed consent before the IDIs were conducted. The investigators developed a semi-structured interview guide with open-ended questions and piloted the guide twice to improve the cultural appropriateness of the script (Additional file 1 ). The investigators also collaborated with local partners to design and implement the research according to local cultural and social norms. Due to the contentious topics discussed in this study, these collaborators prefer to not be mentioned by name. Interviews were conducted in Spanish in a private location and audio taped to protect the participants’ privacy. Recordings were transcribed verbatim and transcripts were coded and analyzed using MAXQDA11 software (VERBI GmbH, Berlin, Germany).

Initially, participants were recruited for interviews through purposive sampling of individuals who had disclosed a personal experience with unintended pregnancy during focus group discussions (FGDs) conducted in a larger parent study. At the end of each interview, participants were asked to refer other young women they knew who may have experienced an unintended pregnancy to participate in an interview. This form of respondent-driven sampling created a network of participants with a wide variety of experiences with unintended pregnancy. Of the ten interviewees, two had experienced unintended pregnancy as a result of rape, though both used the phrase “ sexo no consensual ” or “nonconsensual sex” in lieu of “ violación, ” the Spanish word for rape. One of these women shared her personal experience receiving an unsafe abortion to terminate an unintended pregnancy that had resulted from rape. Her story, shared under the use of the pseudonym Ana Maria, is presented here in order to:

Illustrate the harmful impact of restrictive abortion laws on the health and well-being of women – especially those who do not have access to abortion in the case of rape; and

Exemplify the nexus of contextual risk factors that impact women’s SRH decision-making, such as conservative social norms and restrictive legal policies.

Through thorough analysis, we examine the impact of these contextual factors that impacted Ana Maria’s experience.

When she was 19, Ana Maria was raped by her godfather, a close friend of her family.

In an in-depth interview, Ana Maria described enduring incessant verbal harassment from her godfather – her elder brother’s best friend – in the months before the assault. He constantly called and texted her cell phone in order to interrogate her about platonic relationships with other men in town and to convince her to spend time alone with him. Even though he was married with children and she repeatedly dismissed his advances, he continued to engage in this form of psychological violence with his goddaughter. Ana Maria described eventually “giving in” and meeting him – not knowing that this encounter would result in her forcible rape.

The disclosure of Ana Maria’s rape during her interview was spontaneous and unexpected. Ana Maria was unwilling to disclose explicit details of the sexual assault. Instead, she stated multiple times that the sexual contact was nonconsensual and she did not want to have sex with him. When asked if she told anyone about this experience, she said no because she did not want others to judge her for what had happened.

Approximately a month of scared silence after she was raped, Ana Maria noticed that her period had not come. Nervous, she bought a pregnancy test from a local pharmacy. To her dismay, the test was positive. In order to confirm the pregnancy, she traveled alone to the nearby health center in her town to obtain a blood test. Again, the test was positive. She had never been pregnant before and she was terrified. In the midst of her fear, she shared the results with her rapist, her godfather.

His response: get an abortion. He did not want to lose his wife and children if they found out about the pregnancy.

Other than their illegal nature, Ana Maria knew nothing about abortions – where to get one, how it was done, what it felt like. She asked her neighbors to explain it to her. They said “it was worse than having a baby and [experiencing] childbirth.”

Though Ana Maria did not want to get the abortion, her godfather continued to pressure her to get the procedure saying, “Regardless, you must get the abortion… you are not the first woman to have ever had one.” Similar to the emotional violence before he raped her, he called and texted Ana Maria every day telling her to, “do it as fast as you can.” He forbade her from telling anyone about the pregnancy and Ana Maria didn’t feel like she had anyone to confide in about the situation. She worried about people judging her for getting pregnant outside of a committed relationship – even though she was raped. Ana Maria described this difficult time:

“When he started to pressure me [to get the abortion], I felt alone. I did not have enough trust in anyone to tell them [what had happened] because… if I had had enough trust in someone, I know that they would not have let me do it. If I had been given advice, they would have said, ‘No, do not do it,’ but I did not have anyone and I felt so depressed. What made it worse, I couldn’t sleep; I could not sleep [because I was] thinking of everything he had told me. At night, I would remember how it all started and I do not know what he did to find that money, but he gave me the money to get the abortion.”

Her godfather gave her 3000 Córdobas (approximately USD112 at the time) and put her on a public bus, alone. He had arranged for her to receive the abortion from an older woman that practiced “natural medicine” in a nearby city. When Ana Maria arrived at the woman’s home, she was instructed to remove her pants and underwear and lie on a bed. Ana Maria did not receive any medication before the woman inserted a “device like the one used for a Papanicolau… and then another device like an iron rod” into her vagina.

After describing these devices, Ana Maria made a jerking motion back and forth with her arm to imitate the movement the woman used to perform the abortion.

Once it was over, the woman gave Ana Maria an injection of an unknown substance and told her that she would pass a few blood clots over the next few days. That night, however, Ana Maria’s condition worsened; she became feverish, felt disoriented, and began to pass dark, fetid clots of blood. She described the pain she experienced throughout the ordeal:

“I felt so much pain when they took her out of me. I felt pain when the blood was leaving my body and when I had the fever. I felt a terrible pain that only I suffered. I am [a] different [person] now because of those pains.”

Ana Maria was too afraid to tell her family about the assault or the abortion because she was uncertain how they would react. She was even more terrified of the potential legal repercussions that she could face for violating the total ban on abortion. Within a few days of the abortion, though, Ana Maria’s brother heard rumors of his sister’s situation from neighbors “in the street” and confronted her about what had happened. At first, Ana Maria denied that she had had an abortion, but her brother continued to ask for the truth. Though she was nervous, Ana Maria eventually told her brother everything that had happened – from her godfather’s incessant verbal harassment, to the rape, to the unsafe abortion she was forced to get.

Afraid for his sister’s life, Ana Maria’s brother contacted a local nurse who discreetly provides postabortion care (PAC) to women experiencing complications from unsafe abortion and other obstetric emergencies. This nurse is locally known to be one of the few health care providers who provide PAC despite many other providers’ fear of prosecution under the total ban. The nurse recommended that Ana Maria come to the hospital immediately.

Ana Maria spent almost two weeks as an inpatient at the only hospital in the region. She had become septic as a result of what she described as a “perforated uterus,” a common complication from unsafe abortion. [ 28 ] Upon her initial examination, the nurse was afraid that her uterus could not be repaired because the infection was so severe. Fortunately, the medical team administered an ultrasound, removed infected blood clots, and completed uterine surgery to repair the damage from the unsafe abortion. At the request of the gynecologist taking care of her, Ana Maria received the one-month contraceptive hormonal injection before being discharged. At the time of the interview, Ana Maria had not received the next month’s injection because she “didn’t have any use for a man.”

As a result of this experience, Ana Maria reported feelings of depression, isolation, and recurring dreams about a little girl, which she described in this way:

“After I was discharged, I always dreamt of a little girl and that she was mine, standing in my doorway and when I awoke, I couldn’t find her. I looked for her in my bed but she wasn’t there. And this has tormented me because, it’s true: I am the girl that committed this error, but the little girl was not at fault. He pressured me so strongly to get the abortion, so I did.”

Ana Maria had the same recurring dream every night for more than two weeks and she continued to feel depressed weeks after leaving the hospital. One of the sources of her depression was the isolation she felt because there was no one with whom she could share this experience.

According to Ana Maria, she longs to have other people to talk to about her experience – particularly those who may have had similar experiences. She also expressed a desire to pursue a law degree so that she can have a career in local government.

Discussion and conclusions

Ana Maria’s case provides insight into the contextual factors effecting her ability to realize her sexual and reproductive health and rights in Nicaragua where restrictive legal policies and conservative cultural norms around sexuality abound. These contextual risk factors include social norms related to sexual health, laws targeting VAW, and the criminalization of abortion.

Social norms related to sexual health

The fundamental relationship between structural inequality and sexual and reproductive rights has been duly noted; gender inequality, in particular, must be addressed in order to fulfill sexual rights for women. [ 29 ] As in many cases in Nicaragua, the fact that Ana Maria’s first sexual experience was nonconsensual and was initiated by an older male and trusted family friend highlights the uneven power relations between men and women in Nicaraguan culture, which propagate high instances of VAW and sexual assault. In a patriarchal society where machismo and gender inequality run rampant, women’s sexuality is further constrained by the stigmatization of sexual health and a culture of violence that limits women’s autonomy. The compound stigma surrounding sexual health in general, and rape in particular, negatively impacted Ana Maria’s knowledge and ability to access mental health and SRH services, including emergency contraception and post-rape care, which may have assisted her immediately following her assault. Before her brother intervened, Ana Maria’s fear of judgment and legal repercussions also prevented her from seeking PAC, which was necessary to save her life.

Comprehensive sexual education is a primary way to challenge these social norms and widespread stigma surrounding sexuality and SRH services, such as contraception and PAC, at the population level. Such education might have mitigated Ana Maria’s experience of unintended pregnancy through the provision of advance knowledge of emergency contraception and medical options in the event of pregnancy. CEDAW has recognized this missed opportunity for public health intervention in Nicaragua, and recommends sexual education as a means of addressing stigma related to sexuality, decreasing unintended pregnancy, and increasing the acceptability and use of family planning services throughout the country. [ 21 ] Furthermore, the lack of adolescent-friendly sexual education and SRH services symbolizes a social reluctance to acknowledge the reality that young people have sex. [ 30 ] Such ignorance results in a lack of information on healthy relationships and human reproduction, as well as experiences of unintended pregnancy, early motherhood, and unsafe abortion. Exposure to this type of information may have improved Ana Maria’s ability to protect herself, mitigated the impact of Nicaragua’s pervasive misogyny on her decision making, and lessened the influence of her godfather’s coercion before her experiences of rape and unsafe abortion.

Individual and structural violence against women

Though we do not know explicit details of Ana Maria’s rape, the act of rape is inherently violent. The assault violated her right to enjoy sexual experiences free from coercion and violence. [ 3 ] To further constrain her sexual and reproductive rights, Ana Maria’s experience of rape resulted in an unintended pregnancy and an unsafe abortion that she was pressured into undergoing. Along with physical sequelae as a result of the procedure, she also expressed feelings of depression and isolation, which are common symptoms of post-traumatic stress disorder (PTSD). [ 31 ] These mental health consequences are forms of emotional violence that Ana Maria continued to experience long after the initial insult of physical violence. We can’t distinguish whether her mental health symptoms were a pre-existing condition or a result of the traumatic experience presented here. It is likely, however, that all parts of this experience impacted her mental and physical health. As reported elsewhere, perceived social criticism and a lack of social support are barriers to the fulfillment of sexual and reproductive health among young Nicaraguan women. [ 18 ] These contextual risk factors undoubtedly played a role in Ana Maria’s ability to navigate the circumstances surrounding her assault and its aftermath.

What legal recourse was feasibly available to Ana Maria for the crime of her sexual assault? To our knowledge, Ana Maria did not report the rape to authorities nor did her godfather ever face criminal charges for his actions. Yet Ana Maria’s own fear of prosecution for undergoing the unsafe abortion, as well as shame and fear of being stigmatized by others in her community, strongly influenced her decision not to report the rape -- even though Law 779 contains sanctions specific to those who commit rape.

In the event she had reported the crime, however, it is unclear if Law 779 would have provided justice. There are no data to suggest that Law 779 has led to an increase in the reporting or prosecution of rape at the national level. To the contrary, qualitative work in Nicaragua found a perceived increase in VAW following the passage of the law. [ 14 ] In Nicaragua, the inconsistent or ineffective enforcement of Law 779 is another factor worthy of consideration in cases like Ana Maria’s where individuals do not report such crimes. Documents like the UN Women Model Protocol have recently been released to improve the enforcement of laws like Law 779 in Latin American countries, presenting an opportunity for the effective operationalization of the law in Nicaragua. [ 32 ] If Law 779 is not adequately enforced, women like Ana Maria face the potential for re-victimization through the structural violence of impuity and continued exposure to VAW. To our knowledge, Ana Maria’s perpetrator faced no consequences for his perpetration of harassment, coercion and rape of Ana Maria. Moreover, in countries where abortion is criminalized, such as El Salvador, it is most often women who face criminal sanctions. [ 33 ] Indeed, it was Ana Maria herself who bore the physical and mental burden that resulted from her assault, unintended pregnancy, and unsafe abortion.

The criminalization of abortion

The criminalization of health services is a strategy that governments use to regulate people’s sexuality and sexual activity. [ 34 ] The criminalization of services such as abortion limits women’s ability to make autonomous decisions about their SRH. By definition, laws that restrict access to health services exclude people from receiving the information and services necessary to realize the highest level of SRH possible. [ 5 ] The criminalization of abortion puts the health and well-being of individuals and communities at risk. Beyond the individual level, complications from unsafe abortion often put unnecessary and immeasurable financial burdens on health systems that are already stretched [ 28 ].

Ana Maria did not have a choice when it came to her abortion; the man who raped her coerced her to undergo an unsafe and illegal procedure. The criminalization of abortion in Nicaragua put Ana Maria’s health at risk in two ways: first, it prevented her from obtaining a safe abortion and second, it limited her access to comprehensive sexual health information that could have helped her address her unintended pregnancy, through emergency contraception. After the unsafe abortion procedure, her access to PAC was likely constrained by her own fear of the possible legal repercussions of undergoing an abortion, and was compounded by her inability to trust that a health care provider would maintain patient confidentiality and provide adequate PAC.

In Nicaragua, the total ban on abortion directly contradicts strategic objectives outlined in the Beijing Declaration, which guarantees women’s rights to comprehensive SRH care, including family planning and PAC services. Though providing PAC is not considered illegal under the total ban, many Nicaraguan health care providers refuse to treat women who have had unsafe abortions, which results in a ‘chilling effect’; providers do not want to be accused of being complicit in providing abortions so they refuse to provide PAC services. The ‘chilling effect’ put Ana Maria at risk of morbidity or mortality as a result of the complications that resulted from her unsafe abortion.

Equally troubling is the use of criminal law against individuals like Ana Maria as well as health care professionals that provide PAC. By requiring health care providers to report to the police women who have had abortions, the total ban violates the privacy inherent in the patient-provider relationship. Health care providers are faced with a dual loyalty to both the State’s laws and the confidentiality of their patients, which makes it difficult for providers to fulfill their professional obligations. It also makes health care professionals complicit in a discriminatory practice, one where women face legal sanctions in ways that men do not. The criminalization of abortion in Nicaragua therefore resulted in the fear, stigma, discrimination, and negative health outcomes observed in Ana Maria’s case.

The contextual risk factors that contributed to Ana Maria’s experience of rape, unintended pregnancy, and unsafe abortion are as follows: sexual assault, impunity for violence, gender inequality, restrictive social norms around SRH, stigma resulting from unintended pregnancy and abortion, harmful health impacts from an unsafe abortion, and fear of prosecution due to the total ban. Her first sexual experience was forced and nonconsensual and preceded by months of harassment. Social norms made taboo any discussion of the harassment and sexual violence she experienced at the hands of her godfather; without social support, she was coerced into undergoing an unsafe abortion that resulted in serious mental and physical health sequelae. The illegal nature of abortion in Nicaragua placed Ana Maria at risk for social stigma as well as criminal prosecution. Her subsequent underutilization of family planning services at the time of the interview also placed Ana Maria at risk for an unintended pregnancy in the future; other long-term physical and mental health effects of her experience remain unknown.

The realization of one’s sexual and reproductive rights guarantees autonomous decision-making over one’s fertility and sexual experiences. However, Ana Maria’s story demonstrates that an individual’s SRH decisions are not made in isolation, free from the influence of social norms and national laws. Far too many women experience their sexuality in the context of individual and structural violence, such as VAW and gender inequality. This case highlights the contextual risk factors that contributed to Ana Maria’s experience of violence, unintended pregnancy, and unsafe abortion; we must continue to critically investigate these factors to ensure that experiences like Ana Maria’s do not become further normalized in Nicaragua. Due to restrictive social norms around SRH, Ana Maria grew up experiencing stigma and taboo associated with sex, sexuality, contraceptive use and abortion. She also lacked access to information regarding SRH, healthy relationships, and how to respond to VAW before she was assaulted. After her assault, she did not have access to post-rape care, emergency contraception, safe abortion services, or mental health services to help her process this trauma. Shame and fear of stigma also prevented Ana Maria from reaching out for social support from family, friends, or the health or legal system. From the legal perspective, inadequate enforcement of VAW laws and the criminalization of abortion further exacerbated the trauma Ana Maria experienced.

It would require active engagement from the Nicaraguan government to address the contextual risk factors identified herein to protect their citizens’ right to health and prevent future experiences like Ana Maria’s. These efforts are particularly relevant given recent political unrest throughout Nicaragua including anti-government protests demanding the president’s resignation. [ 35 ] Nicaraguans’ right to health is at risk not only due to the widespread violence, but also because health care workers are being dismissed and persecuted nationwide. [ 36 ] Sexual and reproductive health researchers, advocates, and the public will continue to monitor Nicaragua’s response to the immediate demands and needs of its citizens -- including the demand that Nicaraguan women like Ana Maria are able to fully exercise their sexual and reproductive rights in times of both conflict and peace.

Availability of data and materials

Deidentified data are available upon reasonable request.

Abbreviations

Committee on Civil and Political Rights

Committee on the Elimination of all forms of Discrimination Against Women

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Acknowledgements

The authors thank the research team and in-country collaborators from Proyecto Paz y Amistad, as well as the Emory University Global Field Experience (GFE) Fund and the Global Elimination of Maternal Mortality from Abortion (GEMMA) Fund for financially supporting this project. We are also grateful to Ellen Chiang for her editorial support.

This study was funded with support from the Emory University Global Field Experience (GFE) Fund and the Global Elimination of Maternal Mortality from Abortion (GEMMA) Fund. The funders did not play any direct role in the design of the study; the collection, analysis, and interpretation of data; or the writing of the manuscript.

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All authors contributed extensively to the work presented in this manuscript. SML, DPE, and RWR jointly designed the study. SML performed data collection and data analysis. SML and DPE wrote the manuscript with significant input from RWR. DPE and RWR also provided support and supervision throughout the study. All authors read and approved the final manuscript.

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Emory University’s Institutional Review Board found the study exempt from review because it did not meet the definition of “research” with human subjects as set forth in Emory policies and procedures and federal rules. The authors partnered with Proyecto Paz y Amistad, a local organization to design and implement this study. Proyecto Paz y Amistad deferred to the Emory University IRB’s determination. Nicaragua is notably absent from the US Department of Health and Human Services, International Compilation of Human Research Standards ( https://www.hhs.gov/ohrp/sites/default/files/2018-International-Compilation-of-Human-Research-Standards.pdf ). To our knowledge, there were no existing national level human subjects requirements or exemptions at the time of data collection.

Though the project was exempt from full review by Emory University’s Institutional Review Board, procedural steps were taken to protect the rights of participants and ensure confidentiality throughout data collection, management, and analysis. Verbal informed consent was acquired from all participants before the IDIs were conducted and each participant signed a waiver to participate.

Due to the sensitive nature of this work, individual partners at Proyeto Paz y Amistad have asked not be named publicly as authors on this work, although their partnership was instrumental in the implementation of this study.

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Luffy, S.M., Evans, D.P. & Rochat, R.W. “Regardless, you are not the first woman”: an illustrative case study of contextual risk factors impacting sexual and reproductive health and rights in Nicaragua. BMC Women's Health 19 , 76 (2019). https://doi.org/10.1186/s12905-019-0771-9

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Love as a Journey in the Informed Consent Context: Legal Abortion in England and Wales as a Case Study

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1 Robinson College, University of Cambridge, Cambridge, UK.
PMID: 35491855
DOI: 10.1080/20502877.2022.2067627

The right to informed consent (IC), as established in the Supreme Court judgment in Montgomery v Lanarkshire Health Board [2015] UKSC 11, I claim involves a 'journey of love' between clinicians and patients. The latter entails a process of dialogue and support between the parties, concerning disclosure of risks, benefits and alternatives to medical treatment(s). In this paper, I first claim that IC, in the light of the spirit of Montgomery , is predicated upon two pillars, namely patients' autonomy and medical partnership. I will then explore a case study: the case of legal abortion in England and Wales. Regarding this case, the progressive reduction of medical involvement has meant that little opportunity has been provided for this 'journey' to be unpacked in a medical context. I will ultimately claim that more needs to be done to safeguard IC as a 'journey of love' through valuing both patients' autonomy and medical partnership.

Keywords: Informed consent; abortion; autonomy; love; medical partnership.

Abortion, Legal*
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