Challenging Northern Ireland’s abortion law

The latest challenge to Northern Ireland’s abortion law is a very small step in the right direction, away from a post-conflict settlement in which women can be treated as secondary citizens. 

Goretti Horgan Emma Campbell
23 March 2015

Pressure is mounting on the Northern Ireland Assembly to make changes in the current abortion legislation. On the 2nd February, the Northern Ireland Human Rights Commission (NIHRC) was granted the right to judicial review. They are seeking a change to allow for termination in the case of serious malformation of the foetus or sexual crimes, such as rape or incest.

Recently, the U.N.’s Committee on the Elimination of Discrimination against Women reiterated its recommendation of this change. Yet despite repeated advice from international rights bodies and recommendations from the World Health Organization, the Assembly at Stormont steadfastly refuses to engage coherently with women’s bodily autonomy. Importantly, the Department of Health has refused to be involved, underlining the public suspicion that it is guided by religiosity, rather than concerns for public health and women’s safety. 

At the end of October 2014, Amnesty International released figures from a Northern Ireland poll. The headline figures show that a majority think the law in Northern Ireland should make access to abortion available where the pregnancy is the result of rape (69%), the result of incest (68%), or where the foetus has a fatal abnormality (60%).

The NI Human Rights Commission has frequently warned the Department of Justice that it is currently violating the human rights of women and girls in Northern Ireland by upholding the law as it stands. The Department of Justice announced its own consultation, which is now closed and we await their response with, as yet, no timescale.  However, it only considers women dealing with lethal foetal abnormality, so it does not adequately address the needs of all women carrying a seriously malformed foetus. Neither did it suggest any legislation for women who are survivors of rape, incest and other sexual crimes. It merely sought to gauge opinion, thereby assuaging public feeling rather than properly addressing the real and dangerous impact the lack of clear legal guidance has for women in these circumstances.

This consultation lacks the breadth of vision to make any real change to the lives of the thousands of women from NI who seek abortions every year, only a small percentage of whom have to deal with the diagnosis of a fatal foetal abnormality.  Rather it would create a deserving/undeserving narrative around abortion access and provision, which is part of what the NIHRC recognises as serious failings in respect to the human rights of women and their reproductive healthcare in NI, in accordance with international human rights standards.

Groups including the Northern Ireland Family Planning Association, Precious Life, Alliance for Choice and religious leaders will be providing evidence from both sides at the Judicial Review, expected to begin in the summer of 2015. The human rights that will be cited by the groups in favour of change are enshrined in the European Convention on Human Rights. They are Article 3: Freedom from Torture and inhuman and degrading treatment or punishment (on which there are no limitations or exceptions); Article 8: Right to Privacy (including rights to family life) and Article 14: Discrimination (on grounds of sex, race, colour, language, religion, political, national or social origin, national minority, property birth or other status).

Why do women in Northern Ireland not have the same right to abortion as women in England, Scotland and Wales if we are all part of the “United Kingdom”?  The answer lies in a toxic mixing of religion and politics.  The Stormont Parliament had never extended the 1967 Abortion Act to the region. For decades, women had little choice but to travel to England if they needed an abortion. Then a series of court rulings in the 1990s indicated that abortion is legal in Northern Ireland under the terms of the 1939 “Bourne Judgement”, which said it is legal to end a pregnancy that would leave a woman “a mental or physical wreck”. Following these judgements, the law on abortion in Northern Ireland was said to be “so uncertain that it violates the standards of international human rights law”.  However, the Assembly has failed to provide the clarity needed to bring practice into line with the law.

Even before the Belfast Agreement was signed, there were indications that women’s right to full social citizenship in a ‘new’ Northern Ireland would not be protected. Rather, it became clear that, despite a rhetoric that equality was to be at the heart of a devolved administration, women’s rights to bodily autonomy or reproductive and health rights would be subordinated to the ‘peace process’. And so it proved; while the lack of civil and social rights to control their own bodies continues, women are denied full social and political participation.

Working class and marginalized women who cannot afford to travel to a private clinic are particularly at risk of having their personal, social and political autonomy diminished by an unwanted pregnancy. Poverty and access to travel documents, accommodation and childcare are particularly difficult additional barriers that women in Northern Ireland face when trying to access an abortion in another part of the UK.  The increased impact on these women is difficult to measure but the Abortion Support Network in London hears daily from Northern Irish women who are struggling to raise the funds to afford private healthcare, which becomes very costly, for women carrying foetuses diagnosed with serious impairments during a 20 week scan.

Religious influence on all the major parties is a large part of the reason for this situation. Several Democratic Unionist Party (DUP) Ministers are associated with the Caleb Foundation, set up in 2009 to promote law and government in line with biblical thinking. Those associated with the Caleb Foundation refer to themselves ‘jokingly’ as ‘The Caleban’.  As the Belfast Telegraph pointed out, where the Taliban is pushing for an ultra-hardline version of Sharia law based on its own reading of the Koran, Caleb wants to see a Bible-based society with every law measured against scripture.

The second largest party, Sinn Fein, has supported calls for abortion to be legal in cases of rape and fatal foetal abnormality. But that does not prevent it from trying to keep its Catholic credentials. When “Pro-life” group Precious Life for the first time included the party on its list of “pro-abortion” groups to be shunned at the polls, the party responded with a statement saying, “We are not pro-choice and we are not in favour of abortion (other than) where a pregnant woman’s life is in danger…This is a position shared by the SDLP, the DUP and Catholic Bishop John McAreavy.”  The SF statement was withdrawn when the bishop challenged the depiction of his position and complained about being drawn into a political wrangle.

Attitudes in Northern Ireland are certainly changing. As a recent example, an article in the Guardian about clinic escorts at Marie Stopes Belfast prompted hundreds to call and offer their support. Women make up almost half the workforce and over half of all 2012 births in Belfast (59 percent) and Derry (56 percent) were outside marriage, reflecting changed attitudes to sexual activity.  In spite of this, it is clear that the Assembly will allow abortion only in the very limited circumstances evangelical Protestantism and conservative Catholicism allows.

The legal challenge from the NIHRC is both necessary and welcome, then. Anything that opens up abortion access for women in Northern Ireland is an improvement to our diminished status as citizens.  Importantly, the legal challenge also values the rich and diverse lives that women lead, rather than seeing us as baby-makers only. But it remains a small step towards advancing the right of women in the North of Ireland to self-determination, to control over their own bodies, and to the same level of health care as women in Scotland, England and Wales.

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