Sarah Catt should never have been convicted
The case of a Leeds woman jailed for eight years for inducing her own labour raises some serious questions.
The case of 35-year-old Sarah Catt made headlines last week, when a judge in Leeds, England sentenced her to eight years’ imprisonment for unlawfully procuring her own miscarriage. This sentence is extremely harsh compared with those for infanticide, where jail terms are very rare. The judge, Mr Justice Cooke, was highly critical of Catt, even though she pleaded guilty.
The judge’s sentencing remarks have now been released. They have caused further controversy. In them, Cooke says: ‘There is no mitigation available by reference to the Abortion Act, whatever view one takes of its provisions which are, wrongly, liberally construed in practice so as to make abortion available essentially on demand prior to 24 weeks with the approval of registered medical practitioners [italics added].’
It is unusual to find a judge claiming that others are misinterpreting the law on a grand scale. But it’s emerged that Cooke is vice-president of the Lawyers’ Christian Fellowship, which encourages its members to apply God’s justice on the ground and opposes abortion.
Background to the case
Catt began a maths degree at university, but quit in her second year after she became pregnant. She gave that baby up for adoption. Then she began a relationship with the man whom she later married and became pregnant again. The couple decided to terminate that pregnancy. They went on to have two children. It appears that Catt considered terminating one of those subsequent pregnancies, but had left it too late. Her other subsequent pregnancy was, allegedly, unknown to her husband until the baby arrived.
Meanwhile, Catt was involved in a long-standing affair with someone at work and became pregnant again. In January and February 2010, she had a number of contacts with a Marie Stopes Clinic. Then on 15 March 2010, she went for a scan at a bpas clinic, which showed she was 26 weeks and 3 days. By then, she was too late for a lawful termination under section 1(1)(a) of the Abortion Act 1967 (as amended) which allows for termination where ‘the pregnancy has not exceeded its twenty-fourth week and… the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family…’
This did not exclude the possibility of abortion for fetal anomaly under section 1(1)(d) of the Act, for which there is no time limit. It is unclear whether Catt was offered an anomaly scan. She attended an NHS hospital for another scan to assess the stage of her pregnancy, which showed she was 29 weeks and five days pregnant.
Catt ordered a labour-inducing drug, misoprostol, from India via the internet on 14 April 2012. It did not arrive until 10 May 2010. She asked the provider on 21 May what would happen if she took it at term, and again on 26 May how long it would take to work. She took a day off work on 25 May, and left for a family holiday on 27 May. The court thought she took the drug during her leave from work, when she was, according to the judge, as near to term as makes no difference.
Later, Catt told the police that the baby was stillborn. However, she would not disclose where its body was, which inevitably aroused suspicion. It is an offence secretly to dispose of a child’s body after it is born, under section 60 of the Offences Against the Person Act 1861. That carries a maximum sentence of two years’ imprisonment. But the authorities tried to pin something more serious on Catt instead.
An odd charge
Catt was charged under section 58 of the 1861 Act. This provides: ‘Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, … shall be guilty of felony [italics added].’ The maximum penalty is life imprisonment.
Such a charge makes no sense on the facts of this case. A miscarriage is commonly understood to mean the loss of a pregnancy before fetal viability. It’s difficult to see how Catt could have been intending to miscarry, therefore. She was at term when she sought to induce labour with misoprostol, which induces uterine contractions. Thousands of women have induced labours, which no one would dream of calling abortions.
There is no law prohibiting a woman from birthing at home unattended. Birth is not always straightforward: babies can die intra partum for many reasons, from oxygen deprivation to infection. It is not an offence to have a stillbirth. Catt’s actions seem dreadfully misguided, but there’s no evidence she sought to harm the baby before or during labour. If she killed her baby after birth, and the balance of her mind was disturbed, that would be infanticide.
A high-profile case in 2010 in Australia took a radically different view of a couple who obtained mifepristone and misoprostol by post from a relative abroad. Tegan Leach was charged with attempting to procure her own abortion. Her partner, Sergie Brennan, was charged with supplying her with the drugs. Professor Nicholas Fisk, an eminent obstetrician and expert in fetal medicine, gave evidence for the defence. He said both drugs are commonly licensed as drugs and medication throughout the world. He told the court that mifepristone had been safely prescribed to millions of women. He confirmed that Leach’s miscarriage could have occurred naturally. The jury at the District Court in Cairns, Queensland, took less than an hour to acquit.
Professor Fisk confirmed that misoprostol is on the World Health Organisation’s essential medicines list for (amongst other uses) labour induction. So it would not be right to call it a poison or noxious thing.
It is disturbing that Catt was charged under section 58, and equally troubling that she pleaded guilty, given the existence of reasonable arguments that her actions fell outside the scope of this offence. We do not know what legal advice she had, or her response. It appears that she is the victim of a miscarriage of justice, and should appeal.
Barbara Hewson is a barrister at Hardwicke in London.