by Eimear O’Donoghue
Northern Ireland has been slow to evolve when it comes to human rights issues. It is not reflective of our society, but of our stagnant sectarian politics and a lack of political accountability. With the absence of a devolved government in Northern Ireland since January 2017, the power and responsibility to ensure human rights lay with the British Government.
Prior to 22nd October 2019, abortion in Northern Ireland was criminalised under The Offences Against the Person Act 1861. It covered all circumstances including foetal abnormalities, rape and incest. The maximum penalty for procuring an abortion was life imprisonment. While penalties were not imposed to their full extent, in 2013 a two month suspended sentence was given to a woman for procuring abortion pills and as recently as 2017 abortion activists’ homes were raided and abortion pills were seized by the Police.
The law was heavily criticised by international treaty bodies. The UK ratified CEDAW in 1986, as well as the Optional Protocol in 2004 allowing for inquiries into alleged violations. The Committee on the Elimination of Discrimination Against Women published a report in March 2018 calling on the UK to act as they were in violation of articles 1, 2, 5, 12 & 16, “through its deliberate maintenance of criminal laws disproportionately affecting women… subjecting them to severe physical and mental anguish that may amount to cruel, inhuman and degrading treatment.” Focusing on Article 12, the right of access to health care services, which includes “the right to freely and responsibly decide on the number and spacing of children.” The right to health is a positive obligation, and the law is qualified as discrimination since it predominantly affected women.
People from Northern Ireland were left with limited options including choosing to travel to England, to risk taking illegal abortion pills or continue their pregnancy. The Abortion Act 1967 which permits abortion in certain circumstances, never extended to include Northern Ireland so they have been travelling to receive terminations. Before the CEDAW inquiry, people from Northern Ireland were paying £300+ for a termination, which would have been covered for those from any other part of the UK. Since the report was published, Westminster has given free access so services can be availed of in England. But there are still those who would find it difficult to travel, including; those with disabilities, those in abusive relationships or those with severe mental health issues who were left vulnerable to prosecution.
According to the CEDAW report, carrying an unwanted pregnancy to term amounted to “mental or physical suffering constituting violence against women, potentially amounting to torture or cruel, inhuman and degrading treatment.” This was considered a grave violation of the Convention. Even more so when the foetus is non-viable, which the committee called “state-sanctioned coercion.”
Since the change in the law on 22nd October 2019, abortion in Northern Ireland has been decriminalised. From having the most restrictive abortion provisions, to having one of the most liberal in Europe. With decriminalisation, we have seen prosecutions halted and healthcare professionals issued with new guidance by the Northern Ireland Office.
From October until March 2020 it will still be necessary to travel for abortion services. In this interim period there will be no additional abortion services performed in NI (only 12 procedures were carried out in 2017/2018). Travel and accommodation costs will now be covered and no longer means tested. If abortion pills are acquired online, medical assistance will available as needed without fear of health professionals being under a duty to report a crime.
During the interim period there will be a public consultation which will influence the new legal framework for abortion in Northern Ireland due to come into force by 31 March 2020.
The future for Northern Ireland.
Going forward there is still a lot of work to be done. Compared to the rest of the UK, NI has the highest fertility rate, the highest levels of child poverty, the lowest living standards, the highest childcare costs outside of London, and a higher prevalence of poor mental health. Having no control over your fertility exacerbates these issues and decriminalisation of abortion is only one step in the process of resolving a wider problem.
Sex education in Northern Ireland leaves a lot to be desired. The lack of unbiased and scientifically accurate education on family planning remains a concern and should be a compulsory component of the curriculum. CEDAW in their report also highlighted the need for access to “rights-based counselling and information on sexual and reproductive health services including on all methods of contraception and access to abortion.”
To ensure equality of access we need to be proactive in ensuring that harassment by pro-life protestors outside of healthcare facilities does not interfere with the hard fought right to choose. The police will have to be ready to intervene and investigate complaints as harassment will be a reality.
Decriminalisation would not have been possible without the courage and perseverance of pro-choice activists. They raised this issue to the international level and embarrassed the British parliament into action. Their campaigns were disassociated with the traditional nationalist vs unionist rhetoric, as they knew that when it comes to issues such as accessing abortion services, it is a shared struggle which does not discriminate based on national identity or political affiliation.
Eimear O’Donoghue, Intern at the UN International Residual Mechanism for Criminal Tribunals. Queen’s University Belfast LLB and Maastricht University LLM in Globalisation and Law.