At 8 a.m. on 14th April 1828, 24-year-old Catherine Welch was led from her cell in the Old Bailey to a set of wooden gallows erected outside. The crime for which she had been condemned to death was the killing of her six-week-old baby, found strangled in a watery ditch in Parson’s Green sometime earlier. Like most executions of the time, her death was accompanied by a printed circular, sold for a penny, that outlined her crime, the subsequent investigation, the post-mortem, and detailed the moment she was “launched into eternity.” Welch’s ephemera can be viewed on the Museum of London website and ends with a short poem containing the following verse:
A jury sat upon her crime
A judge in mercy mild
And they did find her guilty of
The murder of her child!
To mercy they would recommend
But justice must deny
For she had none upon her babe
And now must surely die.
A month before her death and two miles down the road, in the Palace of Westminster, a new piece of legislation had been introduced as part of the Peel’s Acts. On 18th March 1828, the Offences Against the Person Act passed its second reading. The large and significant bill aimed to consolidate and modernise many piecemeal statutes of the time concerning harm to individuals. This Act, updated in 1861, did such a thorough job that it is still responsible for approximately 26,000 prosecutions a year in the UK — though it arguably needs a touch more updating. Most pertinent to this article is that it equalised the punishment for procuring an abortion, regardless of whether the mother was “quick with child” or not. These are codified in Sections 58, 59, and 60 of the 1861 Act and make it an offence to: procure an abortion (58); aid in procuring an abortion (59) — a point I will return to later; and attempt to conceal the body of a child resulting from an abortion (60).
Fast forward to today, and much has changed. It is now inconceivable that the state would execute even a certified serial killer, let alone someone who has ended the life of their own child. That said, Britons still believe in incarcerating some parents who kill their children — provided two critical thresholds are met: firstly, that the child is wanted; and secondly, that the child is born. If a child is not wanted and dies before birth as a result of medical abortion, public opinion becomes deeply divided on the course justice should take.
This issue was tested in June 2023 when Carla Foster was found guilty of intentionally killing her eight-month-old unborn baby, subsequently named Lily. The events had taken place in May 2020 and the law she broke was the same Offences Against the Person Act 1861. Justice Sir Edward Pepperall issued a custodial term of 28 months, with the first 14 to be served in custody. The public outcry was immense and backed by numerous prestigious individuals and organisations including multiple Labour and Conservative MPs, Amnesty International and Mandu Reid from the Women’s Equality Party. She was released from prison the following month on appeal, and given a 14-month suspended sentence. Meanwhile, the abortion industry used the moment not to push for the reinstatement of in-person clinic appointments — which could have prevented Lily’s death — but instead campaigned for more relaxed abortion laws. This bizarre moment, which I argued was akin to a car manufacturer lobbying for fewer road safety laws at the crash site of one of their own faulty vehicles, has largely been forgotten — until now.
Over the next five weeks, in one of the cleanly designed, wood-panelled courtrooms of Isleworth Crown Court, another case will unfold that sits squarely on this tributary of legal and public indecision.
Nicola Packer has been charged under the Offences Against the Person Act 1861 for seeking to procure an abortion outside the law. Had she undergone the abortion before 10 weeks — or in a clinic afterward, under the supervision and “good faith” decision of two doctors — she would have been within the bounds of legality. However, she unwittingly stepped outside the complex framework of exemptions in British law, leaving both herself and her unborn child exposed.
Having obtained abortion pills via a phone consultation with MSI, her baby was delivered at home into a toilet, and subsequently transported to the local hospital by her in a backpack … dead. The baby is thought to have been at 26 weeks’ gestation at the time. According to an expert witness (who cannot be named for legal reasons) the baby, of unknown gender, weighed 820g and measured 33.5 cm from head to toe when examined six days later. Ms Packer claimed she had suffered a miscarriage, but searches on her phone relating to gestation and the traceability of abortifacient medication ultimately led to her arrest.
The trial took a darker turn when it was revealed that Packer had been living in a BDSM relationship with a married couple since the COVID lockdown. For the uninitiated, BDSM stands for Bondage, Domination, Sadism, and Masochism — describing a range of sexual practices that involve restraint, dominance, and the supposedly consensual giving and receiving of pain. “It would appear,” stated prosecutor Alexandra Felix KC, that the boundaries of this sordid agreement between wife, husband and guest (supposedly limited to oral sex, bondage, and nipple-clamping) were not honoured, as Packer and the husband “engaged in sexual intercourse”.
Exactly who raised this context, I know not — however, according to the media coverage it has been used less to question Packer’s character, and more in her defence. According to the wife, who appeared via video link last week, Packer was frequently naked around the house and showed no visible signs of pregnancy. It was further noted that the household consumed alcohol “a lot” — unsurprising for a living arrangement not conducive to sobriety.
Central to the defence, led by Fiona Horlick KC, is raising doubt not only about whether Ms. Packer knew she was pregnant, but also how pregnant she was. Most of the legal arguments I observed in court last Tuesday centred around how developed and healthy the “baby” was. Notably, this was the term used by the witness and prosecution — though the defence more often used the clinical term “foetus.” The witness, a pathologist by training, examined the deceased baby’s weight, length, organ mass, and most critically, the brain-to-liver weight ratio — a diagnostic tool for detecting signs of poor health. They concluded, “Nothing in my investigation indicated a poor outcome for this baby.” They also stated that it was their professional opinion “the baby died shortly before it was born”. The only anomaly was a mark on the back of the baby’s head, caused by its collision with the toilet bowl — a point uncontested by either side.
What was contested was the accuracy of gestational dating. Using evidence available only to the legal teams, the defence spent about an hour questioning the pathology report’s findings. I can only speculate on the exact legal strategy behind this. Based on interventions by Judge Edmunds KC, who repeatedly asked, “What area are you trying to explore?”— it appeared to be aimed at establishing the possibility that the child was, in fact, 24 weeks or younger. If proven, this might place Packer below the legal threshold for unlawfully terminating a healthy pregnancy under the 1967 Abortion Act. However, it remains unclear what legal protection this would confer, given that any abortion beyond 10 weeks at home remains illegal.
This said, it is probably known by the defence that, while around half a dozen cases of women undergoing illegal abortions have been brought to court, the vast majority never do. In the first 6 months after telemedical abortions were introduced the Department of Health and Social Care (DHSC) identified 52 illegal cases of women taking abortion pills beyond 10 weeks (FOI 1250644 in supplementary analysis here). Of these only a tiny proportion have been prosecuted, and of these priority was given to the 4 that took place beyond 24 weeks, of which this and the Foster case are likely two.
It is also probably known to the defence, at least it should be, that the same legislation is used regularly to prosecute men. Stuart Worby and Darren Burke are two men, currently sitting in His Majesty’s prisons for attempting to induce abortions in their sexual partners without consent. In fact, a recent FOI request we conducted revealed that in recent years, 27 charges have been brought under Sections 58, 59, and 60 of the OAPA — half of them against men.
The abortion industry itself must be held accountable, and that telemedical abortion should be brought to an end
And this, ultimately, is where I believe the real issue lies. While campaigns rage against this “archaic” “Victorian” law, the law itself, as I explained to Iain Dale on LBC a few years ago, is not the root of the problem. The issue lies in the facilitation and blind distribution of abortion pills by the abortion industry.
Towards the end of 2020, Christian Concern, a small Christian think tank and lobby group, coordinated a mystery client investigation into telemedicine abortions. All 26 fake aliases they used received abortion pills — few questions asked. When the same organisation, working with former members of parliament, medical professionals and industry insiders, launched a judicial review against Matt Hancock and the DHSC for introducing these dangerous measures, it was dismissed. Yet, five years later, we are witnessing exactly what they sought to warn against.
As Kevin Duffy, a former director of MSI and one of the expert witnesses in that discarded judicial review, stated on X:
Had Packer been clinically assessed by an in-person appointment — as would have happened historically — MSI-RC would have determined gestation, and she would not have been prescribed the abortion pills. In-person clinical assessment is essential to ensure pills-by-post is legal.
What’s more — and this is another key point Duffy raises — how can doctors be said to act in “good faith” if they are not even assessing the patient?
On 7th November 2023, exactly three years after Nicola Packer arrived at A&E with her dead baby in a backpack, the Parliamentary Under-Secretary for Health and Social Care was asked what steps the department was taking to ensure telemedicine abortion providers did not supply drugs to people beyond the legal limit.
On 14th November 2023, three years to the day since Packer’s healthy baby’s body was being reassembled after post-mortem, an unsatisfactory response arrived: “We have no plans to make an assessment of the adequacy of this policy’s operation. Yet buried within this disappointing response was a telling admission:
If [the patient] does not attend in-person, the doctor would not be able to form an opinion in good faith that the pregnancy is below 10 weeks’ gestation and therefore would not be able to prescribe abortion pills for home use.
In previous cases of this kind, the abortion industry has taken to the airwaves to push for the repeal of Sections 58, 59, and 60 of the Offences Against the Person Act (OAPA). On this occasion, however, bar a few sub level tweets, they have been strangely silent. Perhaps this is because Section 59 of the very same act makes it an offence to aid in an abortion, and the 1967 law only provides protection if the decision to abort a child is made in “good faith.” Clearly, in this case, it was not — since the pills were issued without an in-person consultation to establish gestational age.
I do not wish the gallows upon any woman who has legally or illegally undergone an abortion. Rather, it is my view that the abortion industry itself must be held accountable, and that telemedical abortion should be brought to an end to prevent viable, healthy babies like Packer’s from being killed in bad faith. Let the gallows stand — not for the individual but for the industry that is harming them.
The case continues.
