Image: Flickr/Feminist Fightback
Last Wednesday, the Supreme Court narrowly upheld a ruling that denies Northern Irish women access to free abortion care through NHS England. The Secretary of State for Health’s bar on Northern Irish residents accessing NHS abortion care in England was preserved out of declared “respect“ to Northern Irish politicians and for the legitimacy of the devolved UK political institutions.
The appeal case was brought by a young woman - referred to throughout court proceedings as “Claimant A”, for age reasons – who became pregnant in 2012 as a fifteen-year-old girl and was forced to travel to England to acquire a medical termination. Unable to obtain NHS care, she was
forced to pay £900 for a private termination.
This latest leg of Claimant A’s legal battle with the Department of Health follows on from an unsuccessful judicial review challenge in 2014, which A’s legal team promised to contest in the Court of Appeal. The girl’s appeal was funded by loans from friends as well as financial backing from the Abortion Support Network, a charity set up to assist and provide aid for women travelling from Northern Ireland and the Republic of Ireland for overseas abortions.
Under the 1967 Abortion Act, such services are available to women for up to 24 weeks of pregnancy (with some exceptions afterwards where foetal abnormalities or serious health risks to the mother occur) in England, Scotland and Wales. The legislation, however, has never been extended to Northern Ireland. Women in the country are therefore still subject to the 1861 Offences Against the Person Act. This means that only a very small number of the 724 women who travelled to England and Wales for an abortion from Northern Ireland in 2016, and the 3, 265 women travelling from the Republic last year, were able to procure an operation through the NHS. Those Northern Irish women who can get to England face the costs of a private abortion. And the law fails women from lower-income backgrounds even more harshly. Those who lack the money to pay for a private abortion in another part of the UK, and who instead order abortion pills online to take at home, face up to life imprisonment (along with anyone found to be assisting them) – even in the case of a fatal foetal abnormality or if their conception is the result of a sexual crime.
One shocking, widely-publicised case last year involved a twenty-one-year-old girl receiving a suspended sentence for performing an abortion with a pill she obtained online. The law fails women in other ways too - as shown by story of Sarah Ewart, whose experiences formed the basis of a separate legal challenge against Northern Ireland’s abortion policy when she was not covered after her unborn child was found to have Anencephaly part-way during her pregnancy.
For young women especially, the often daunting nature of the trips over to Great Britain, as well as the stigma attached to those who undergo a termination on returning to a largely conservative society on both sides of the Irish border, can add to the traumatic effects brought on for many by the overall process. A case in the Republic of Ireland this week also underlined the callous treatment of women seeking abortion care across the island, as a young girl judged to be at risk of suicide, and sectioned under the Mental Health Act, was denied a termination.
Danielle Roberts, an activist with the Alliance for Choice group, commented after the ruling: “Figures out this week show that in 2016 at least 2 women a day travelled from Northern Ireland to Great Britain for abortion healthcare. Recent research published in the BMJ shows that at least 1 woman a day is using safe but illegal abortion pills from Women on Web, risking up to life in prison”.
“The drop in women travelling to Great Britain [compared to statistics from previous years] is not surprising, as the use of pills bought online has increased. It remains to be seen if the increasing raids and prosecutions have an impact on this years’ figures [referring, in part, to PSNI raids of people suspected to be in possession of abortion pills on International Women’s Day this year]. However, earlier this year abortion clinics in England were struggling to meet demand, and had to prioritise NHS patients [from England, who are covered by the 1967 Act]”.
In 2015, a case put forward by the Northern Ireland Human Rights Commission looked to extend the available grounds, or remit, for abortion in the country – leading a High Court judge to conclude that abortion law in Northern Ireland was “incompatible with [EU] human rights [law]”. Propositions like these go some way towards the full legalisation of the procedure that activists like Roberts hope for - at least for as long as EU human rights laws continue to apply in the UK.
But for all that, Mr Justice Homer’s “historic” ruling in favour of widening abortion provision was later appealed by Northern Ireland’s Attorney General and the Department of Justice. Northern Ireland’s abortion laws have been heavily criticised by a number of groups, including the UN High Commissioner for Human Rights and Amnesty International – which regards abortion and wider bodily autonomy as a “fundamental human right”. Northern Ireland still holds the harshest punishment for illegal abortions anywhere in Europe. And its repressive laws on abortion access are surpassed only by those in the Republic of Ireland and Malta currently.
More recently still, marginal progress regarding consultation for increased abortion access in the country was put on hold when the shut-down of the Northern Irish Assembly was announced earlier this year. The political stalemate over power-sharing talks at Stormont shows little sign of being resolved soon, as both parties (particularly the latter) become increasingly involved in the formation of a new UK government after this month’s inconclusive General Election result.
Claimant A’s result marks a disappointing juncture in a legal battle which has dragged on for several years, having already been contested in several domestic courts before being taken to the highest appellate court in the UK. The close and split nature of the judgment, which saw 3 judges vote in favour of the existing policy versus 2 against, may provide some kind of silver lining for the claimant and her team, as does the possibility of the case still being taken to the European Court of Human Rights.
But the decision is undeniably a blow for Pro-Choice groups both north and south of the border.
The Republic of Ireland’s “cruel and inhumane” abortion laws came under significant criticisms from a UN Committee earlier this week (not for the first time over the past 12 months), as it ruled in favour of Siobhán Whelan who was denied an abortion in 2010 despite a diagnosis of fatal foetal syndrome during the course of her pregnancy. A battle looms in the Republic after the announcement of a referendum on whether to alter the Eighth Amendment of the Irish Constitution – which grants equal value to an unborn foetus and its mother, and equal entitlement to the right to life - to be held next year.
In Northern Ireland, campaigners have somewhat less cause to be optimistic, with Theresa May’s Conservative Party having to rely on the support, in some form or other, of the anti-abortion Democratic Unionist Party (DUP) to form a majority government. Despite the DUP’s economic pragmatism moving them to table mostly budgetary demands, and to leave some of their more divisive positions on social issues off the negotiating agenda, this arrangement with Westminster means that some concessions and backing will be granted to the party on a number of key issues. Former Northern Ireland secretary and influential backbencher Owen Patterson has already suggested that lowering of abortion time limits could be up for debate as part of such a deal.
Up until last week’s election result, the DUP were thought to have been on the political backfoot in Northern Ireland. Their scandal-hit leadership realises the main party for Unionism in the country need to win back the support of large swathes of the Northern Irish electorate. Power-sharing is in disarray, and the unionists lost their overall majority for the first time in Northern Ireland’s history this March. It could prove unwise – with the lingering possibility of another round of Assembly elections if power-sharing is not restored - for the party to continually block a policy change with so much public backing. One poll last year suggested over 70% were in favour of amending abortion law.
All judges in the case agreed that women in Northern Ireland are being discriminated against, and that the power to alter the policy lies with the Secretary of State for Health. So, with this latest decision and political deadlock appearing to shelve the issue even further, the focus and pressure surely switches to Health Secretary, Jeremy Hunt. Katherine O’Brien of BPAS, writing in the i Paper last week, urged Hunt to “do the right thing” and “Put politics aside”, arguing that the case helps to prove “Hunt is maintaining this policy due to political – not economic – reasons”, while Northern Irish women continue to suffer.
Claire Baley, Green Party MLA for Belfast South, is one of the few elected representatives in Northern Ireland who favour and push for full decriminalisation and provision of abortion services in the country. She echoed O’Brien’s criticisms of Whitehall ministers, stressing shared culpability for the denial of human rights: “The UK government have been complicit in this continued denial of even the minimum human rights standards to women in Northern Ireland. Their failure to allow women access to abortion on the NHS compounds their failure to implement human rights across the whole of the UK. I call on Westminster to address this situation as a matter of urgency so that the women of Northern Ireland can have access to safe, free and legal abortion and be treated like equal citizens of the United Kingdom”.
She continued: “it is disappointing that women from Northern Ireland will still not be entitled to access abortion services on the NHS. We are UK taxpayers, yet are denied the same healthcare that our sisters in England, Scotland and Wales receive”.
“The fact remains that Northern Ireland’s abortion laws do not stop abortions. Women will always seek an abortion whenever they need one[…]I only wish that more elected representatives would listen to their words and[,] indeed, the words of the 700 plus women who have had to make the journey across the Irish Sea in the last year alone”.
The vocal and high-presence Pro-Life group, Precious Life, as well as MLA Simon Hamilton, of the DUP, and Sinn Féin’s Michelle O’Neill, were all contacted for their reaction to the ruling. It is obviously an abnormally busy time for DUP and Sinn Féin ministers right now, with power-sharing talks and an increased role in Westminster negotiations for both groups happening side by side. But nevertheless, none of them replied to openDemocracy’s requests for comment.