For many years our Northern Irish neighbours were not afforded the same rights to abortion as us on the mainland. Women were, in effect, forced to travel across the Irish Sea to England, Wales and Scotland to be entitled to their right to abortion.
As part of my research for this blog and the abortion laws in Northern Ireland (NI) I spoke to Mairead Enright, a Reader in feminist legal studies at Birmingham Law School. Given that Mairead heavily focuses on abortion in the Republic of Ireland, I did consider writing this blog on the Republic of Ireland. However, I concluded that NI makes the abortion laws in the UK complete, and it was the inability to get an abortion across the entirety of the UK which was of interest to me and hopefully to you.
Abortion as a Criminal Offence: Prior to October 2019
Before October 2019, in NI, it was a criminal offence to terminate your own pregnancy in any circumstance. It was also a criminal offence for a doctor or anyone else to assist in the termination of a pregnancy. The only exception was that a doctor could terminate a pregnancy if there was a risk to a woman’s life or a real and serious long-term risk to her health. However, in reality, even where there was a woman’s life at risk, in practice abortions were rarely carried out in NI.
This meant that the majority of women who needed an abortion either had to travel to Britain or relied on illegal pill providers. Mairead made it clear that although the pills were illegal, they were not unsafe. Any risk arose from the criminalisation of abortion and its effect on women’s rights, not the safety or ability to access the medications.
Although travelling across the Irish Sea to access an abortion was legal, there were many practical considerations that made it difficult or impossible for some. It also typically meant making the journey later on during their pregnancy, because travel takes time to arrange. For example, travelling to Britain for an abortion requires you to be able to leave your house and not return for some time. Having children already, a disability, a controlling partner or a low income could all impact your ability to access an abortion. The cost incurred through the process of travelling, for example, travel, accommodation and payment for some elements of the abortion under the NHS meant that travelling was not a luxury that everyone could afford. Luckily, Westminster has now removed any need to pay for an abortion under the NHS when travelling from Northern Ireland.
Decriminalisation of Abortion: October 2019
Since the decriminalisation of abortion, there is no longer a risk of a jail sentence if you decide to self-access pills to terminate your pregnancy.
The new laws are held under The Abortion (NI) Regulations 2020. The law is as follows:
- Up to 12 weeks’ gestation you can have an abortion on request. (This is more liberal than England & Wales as you cannot not have an abortion unless it is for a health-based reason. More on this later.)
- Between 12-24 weeks gestation you can give a health-based reason for abortion where “the risk of injury to the physical or mental health of the pregnant woman… is greater than if the pregnancy were terminated.”
- After 24 weeks the grounds for abortion are much narrower and are similar to the laws pre-2019. You have to prove that there is a risk to your life, risk of very grave and permanent damage to your health or a diagnosis that suggests that the foetus has a severe or fatal foetal anomaly. This, as Mairead explained, means that the foetus is likely to die during pregnancy, during the course of birth or shortly after birth or if they survive their health and quality of life will be severely impacted. What determines a severe foetal anomaly varies from case to case but typically it means that the baby will be born and live for maybe four months to a year but requires constant intensive support to continue living.
Mairead stated that “we have essentially gone from a situation of criminalisation to decriminalisation with very limited grounds in later pregnancy.” The decriminalisation is positive and so are the broader time-based grounds for abortions. With additional provisions, than in England & Wales with the inclusion of an “abortion on request” up to 12 weeks’ gestation being viewed as more liberal than across the Irish Sea. However, after 24 weeks’ the grounds are still considerably narrow in relation to having to evidence a risk to life or permanent harm to the foetus.
Mairead highlighted that in practice implementation of the law has been slow and response to the High Court’s ruling, which held that NI was breaching the UK’s human rights commitments, has been lacking. In practice, as Mairead stated, “the experience of accessing an abortion in NI at the moment is not necessarily very different to pre-October 2019.”
We have the before and after: what about the in-between?
The in-between was filled with campaigns and work from organisations like Alliance4Choice. Organisations have been campaigning since the decision was made to legalise abortion on broader grounds in England & Wales in 1967. However, even though rights to abortion were accessible to women in England & Wales, Stormont (Parliament in NI) made an active decision not to extend the Westminster 1967 Abortion Act to NI.
Alliance4Choice was working to create new public ways of thinking about abortions, creating new spaces where women could talk about their abortions. On social media they ran workshops, in the streets they set up street stalls where people could come and chat. They did all of this before formal political lobbying started and created a body of public support for the new law. This community of women who have experienced abortion, was essential in the movement towards the decriminalisation of abortion.
From 2010 onwards the pro-choice movement became more public. The legislative authority to change the law in NI lay with Stormont. One massive issue was that – from January 2017 until January 2020- Stormont was not currently sitting. Hence there was a long period where there was no law-making authority in NI. This spurred the pro-choice movement to address Westminster and force them to take responsibility for protecting NI women’s rights.
As Mairead helpfully explained, there was an issue with the origin of these obligations. Westminster had a history of ignoring the equal rights of women in NI and also LGBT rights, for example not extending the Same Sex Marriage Act. Campaigners, therefore, attempted to argue that the need to change the law came from International Human Rights Law as the UK’s failure to protect women’s abortion rights in NI was against Article 3, the right to avoid inhuman and degrading treatment and Article 8, right to a private and family life of the Human Rights Act 1998 (HRA).
The Committee on the Elimination of Discrimination Against Women (CEDAW) produced a report which stated that the UK had breached the rights of women in NI by limiting their access to abortion services. The report made 13 recommendation, including the repeal of criminal sanctions. The Committee (which consists of 23 experts from across the world) heard evidence from a range of affected women. Mairead highlighted the fact that, although the report was “useful”, international treaties are “very rarely determinative” as Parliament prefers a signal from their own domestic system.
Simultaneously, the Northern Ireland Commission for Human Rights had brought strategic litigation in International Human Rights. The litigation was difficult because of standing issues, health care was a devolved issue under devolution laws and hence should be a matter for Stormont. The case also faced procedural difficulties resulting from the fact that the Commission, rather than individual women, brought the case. Nevertheless, the case told the stories of numerous women who had to travel for an abortion. It particularly focused on women who conceived through rape and women whose foetuses had a fatal anomaly. It was argued that forcing travel in these situations “exacerbates the trauma, loneliness, distress and difficulty” of obtaining an abortion, in violation of the Article 3 and the Article 8 of HRA.
The Supreme Court also highlighted the NI Attorney General and Representatives of the NI Government’s inability to show that restricting abortion in NI supported their “public policy goals”. For example, if you are allowing women to travel for an abortion you are not protecting the right for life but “instead you’re just punishing the woman who needs this termination”.
Now to the politicians
After both CEDAW and the litigation, campaigner now had to get politicians to listen. This job was undertaken by Alliance4Choice and the London Irish Abortion Rights Campaign. Their now second attempt at lobbying the Labour party proved more successful than the first. Due to the current political scene around Brexit, which was dominating the media. Mairead argued that Labour “wanted an issue where they could shine a light on the Tory party’s reliance on the DUP to get its regressive policies through Westminster”. The issue was abortion, and this encouraged some pro-choice conservatives and other politicians to join the debate.
This coincided with the extension to the Republic of Ireland’s abortion laws. Mairead highlighted how this change made NI “an outlier” and subsequently the issue became even more obvious. Mairead highlighted that “on the one hand, it looks like a perfect storm, a perfect accident” but actually the same NI human rights activists were involved in all of those stairs. Alliance4Choice was involved in every stage.
Mairead stated that these three actions caused “the train to leave the station”. The only question that remained was sovereignty. There was pushback from NI Government, however; Westminster and activists were able to successfully argue that “you have been dodging your responsibility to 50% of the population for decades and Westminster is obliged to step in.” (Mairead) However, activists were not just asking for a “copy of the 1967 Act” instead they wanted a “bespoke human rights compliant Northern Irish abortion law to respond to Northern Irish women’s stories.” They wanted something new- not a “recolonised” version.
Is there still resistance to abortion in NI?
The majority of the remaining resistance is coming from inside the DUP which creates an implementation barrier for women today as they hold power in the Department of Health. Sinn Féin are not an effective party for challenging the abortion laws as they are not a radical pro-choice party. DUP could be described as evangelical protestants and therefore comes from an anti-choice background. Although the legal framework is in place, the DUP have been very slow to commission services, particularly for later on during pregnancy.
Further resistance is coming from some within the medical profession. The short transfer from a criminal practice to decriminalisation means that many professionals are uncertain on what they can legally do.
Implementation issues could be solved by increasing the kinds of medical practitioners who can approve an abortion or increasing provision for women to be able to take both medical pills for abortion at home, which would decrease reliance on the medical model. The exploration around telemedicine (at home abortion pills) in the rest of the UK and Republic of Ireland has been successful since the pandemic started, however there was a refusal of this in NI. Currently, NI does not have access to cost effective, safe and practical methods of abortion during the pandemic.
The inability to allow for telemedical abortions has left women in NI isolated and unable to get a safe abortion. Alliance4Choice stated that they have been receiving as many phone calls as they did before October 2019, if not more, from women needing abortions. The pandemic has also seen a rise in domestic violence cases and therefore in light of lockdown restrictions, women have not been in a private situation to enable them to make plans and arrangements for abortions. Lockdown restricted travel within NI as well as restriction to flights to the mainland, for women who relied on travel to obtain an abortion. Mairead stated that, at the beginning of the pandemic, the media reported women travelling in the holds of cargo ships because ferries were not running. These trips take 3 to 4 times longer than normal.
Reflection
With a mountain of information, I have just described, thanks to Mairead Enright’s detailed explanation of the recent history and current realties, it is necessary to reflect on what it means. I haven’t just given you information, I have relayed some of the story which has lead women in NI to legally have a right to abortion without it been fettered in criminalisation. However, the legal premise is nothing without medical and social implementation.
The NI Abortion Laws are somewhat similar to the 1967 Abortion Act, which whilst at the time was deemed radical is perhaps now not radical enough. The abortion laws in NI were founded by a “whole jurisdictional feminist campaign” to improve abortion laws for everyone. Some may argue that abortion laws have been in place to preserve life, others view the nature of abortion laws as an “attempt to govern and manage women in particular ways” which unfortunately always creates “different versions of the same kind of problem, no matter what jurisdiction” for women. Mairead explained that “we do have design solutions” to uphold women’s right to abortion such as telemedicine, however, when we don’t use them, all these predictable things happen, mainly women not being able to easily access abortions. The NI law was an opportunity for Westminster to do better than the 1967 Act. However, one may argue that, politically Westminster couldn’t let NI be in a better place in relation to women’s rights to access an abortion than England & Wales. This meant they kept the narrow grounds for later term abortions, which continue to let women face adversity and lack of autonomy in their choice to have an abortion.
Sources
A massive thank you to Mairead Enright who sat down (virtually) with me to discuss these pressing issues
The Abortion (NI) Regulation 2020: https://www.legislation.gov.uk/uksi/2020/345/part/3/chapter/1/made
Alliance4Choice: https://www.alliance4choice.com/alliance-for-choice-video
In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) Supreme Court Case: https://www.supremecourt.uk/cases/docs/uksc-2017-0131-judgment.pdf
London Irish Abortion Rights Campaign.
By Abbie Bauckham