BY LAUREN GALLAGHER – “Sometimes it feels like you are in one of those American states on the frontline of the abortion wars such as Texas. I have had to walk the women out through the protests all the way to the railway and bus stations across the road and sometimes into the city centre.”
– Emma Campbell, Marie Stopes sexual health clinic volunteer[1]
In 1967, the Abortion Act legalized abortions by registered practitioners across the United Kingdom – except in Northern Ireland.[2] The country only allows abortions in very restrictive circumstances. Unless the mother’s life is at risk, abortion is illegal. The exception only applies to save a woman’s life or if there is a risk of permanent and serious damage to her mental or physical health.[3] Not only is the law one of the most restrictive in Europe, but it also carries the harshest criminal penalty in abortion regulation.[4] A woman who undergoes an unlawful abortion, as well as, any individual who assists her faces life imprisonment.[5] This applies even in cases where the pregnancy is a result of rape or incest, or in cases where fetal abnormalities are fatal (lethal foetal abnormality).[6]
Although the criminal sanction is not applied in practice, the restrictive law has created a chilling effect. The threat of criminal penalty has generated fear in lawful abortion providers making access to termination of pregnancy services unreachable in some areas.[7] Amnesty International campaigners argue that a “postcode lottery” has resulted – where a woman lives in Northern Ireland will determine whether she is offered a legal termination.[8] It is up to individual doctors whether they choose to provide the services or not.[9] This is mainly due to the fact that medical professionals still work in the absence of guidelines. The Department of Health has yet to issue abortion guidelines – which have only been issued in draft.[10] Many women have no choice but to travel to England to seek abortion care.[11]
In recent months, the Department of Justice (DOJ) for Northern Ireland has discussed the possibility of legally changing the law. The DOJ has recommended the possible decriminalization and legalization of abortion in cases of legal foetal.[12] However, the department did not mention law changes for pregnancies resulting from rape or incest.[13] As a result, the Northern Ireland Human Rights Commission (NIHRC) legally challenged the DOJ’s proposal because of the exclusions.[14]
While the NIHRC acknowledges that the proposal is a move in the right direction, the commission issued proceedings against the DOJ in an attempt to secure a change in the law to allow for abortion in cases or rape, incest, and lethal foetal abnormality.[15] The NIHRC took the case based on three articles in the European convention on human rights: freedom from inhuman and degrading treatment, right to privacy, and protection against discrimination.[16] On February 2, 2015, the High Court in Belfast heard the NIHRC’s legal challenge to the law and ruled that the commission had established a case worthy of a three-day hearing, which will take place in June.[17]
Northern Ireland’s restrictive abortion laws are in significant breach of the United Kingdom’s international human rights obligations. While the DOJ’s initiative is a positive step, the lack of legal guidance and stigma of criminal sanctions continues to have a negative impact on women’s human rights. However, the DOJ has described the NIHRC’s challenge as “ill-timed and unnecessary.”[18] Supporters of the DOJ’s characterization argue that not one international human rights instrument recognizes a right to abortion.[19] Still, international human rights bodies have repeatedly criticized the criminalization of abortion and called on states to liberalize restrictive regulation laws in order to ensure access to lawful abortions.[20]
As it stands, the law has created a hostile environment throughout the country for women and medical professionals. Women with a socioeconomic disadvantage are unable to afford the expense of travel to another country to avail an abortion or the health services associated with one. Healthcare professionals live in fear of providing services and are unable to consult the Department of Health for guidance.
A ruling in favor of the NIHRC would allow women in Northern Ireland to have equal rights regardless of their postcode, as well as, the same rights as women in the rest of the United Kingdom. In addition, medical professionals can look forward to the publication of clear guidelines on the termination of pregnancy and sexual health care. A change would bring Northern Ireland more in line with international human rights standards and would be the first time in seventy years the country’s abortion laws have been modified.
[1] Henry McDonald, ‘It Feels Like Texas’: Running the Gauntlet of Belfast’s Anti-Abortion Protestors, The Guardian, Feb. 24, 2015, available at http://www.theguardian.com/world/2015/feb/24/we-christened-your-dead-baby-belfast-clinics-anti-abortion-marie-stopes.
[2] Tim Martin, Abortion: Ireland’s Guilty Secret?, The Telegraph, Feb. 4, 2015, available at http://www.telegraph.co.uk/culture/tvandradio/tv-and-radio-reviews/11389784/Abortion-Irelands-Guilty-Secret-BBC-Three-review-full-of-tears.html.
[3] Marie-Louise Connolly, Amnesty International: Abortion Services in Northern Ireland ‘Postcode Lottery’, BBC, http://www.bbc.com/news/uk-northern-ireland-31638096 (last updated Feb. 26 2015).
[4] Id.
[5] Northern Ireland: Draconian Abortion Law Harshest in Europe, Amnesty International, Feb. 26, 2015, available at https://www.amnesty.org/en/articles/news/2015/02/northern-ireland-draconian-abortion-laws/.
[6] Id.
[7] Id.
[8] Id.
[9] Connolly, supra note 3.
[10] Amnesty International, Northern Ireland: Barriers to Accessing Abortion Services 6 (2015), available at http://www.amnesty.org.uk/sites/default/files/eur_45_0157_2015_northern_ireland_-_barriers_to_accessing_abortion_services_pdf.pdf.
[11] https://www.amnesty.org/en/articles/news/2015/02/northern-ireland-draconian-abortion-laws/
[12] Northern Ireland Abortion Laws Case Granted Judicial Review, BBC, http://www.bbc.com/news/uk-northern-ireland-31075128 (last updated Feb. 2 2015).
[13] Id.
[14] Henry McDonald, Northern Ireland High Court Grants Judicial Review of Abortion Law, The Guardian, Feb. 2, 2015, available at http://www.theguardian.com/world/2015/feb/02/northern-ireland-high-court-hears-abortion-challenge-rape-incest.
[15] Alan Erwin, Northern Ireland Abortion Law Can be Challenged, Court Rules, The Irish Times, Feb. 2, 2015, available at http://www.irishtimes.com/news/crime-and-law/northern-ireland-abortion-law-can-be-challenged-court-rules-1.2088265.
[16] Henry McDonald, Northern Ireland Government Taken to High Court on Abortion Rights, The Guardian, Dec. 10, 2014, available at http://www.theguardian.com/world/2014/dec/10/northern-ireland-abortion-human-rights.
[17] Northern Ireland High Court Grants Judicial Review of Abortion Law, supra note 14.
[18] Challenge to Northern Ireland’s Abortion Laws to be Heard in February, BBC, http://www.bbc.com/news/uk-northern-ireland-30698498 (last updated Jan. 6 2015).
[19] Id.
[20] Amnesty International, supra note 10, at 13.
