March 2020 saw the introduction of a new, more liberal abortion law in Northern Ireland. Abortion had been all but illegal since the formation of the state, so it was not surprising that some of those opposed to change would seek various means to resist it. What is perhaps more surprising is how successful those charged with making, implementing and upholding the law itself as an institution here, have been in ensuring very little has changed in practice here since March.
This piece looks at how the momentous change signalled by the decriminalisation has been undermined by those in positions of power in Northern Ireland. It will reflect upon events and proclamations surrounding the reform, aimed at deliberately spreading misinformation, doubt and confusion. In an effort to preserve Northern Ireland’s practice of ‘doing its own thing’ when it comes to abortion, despite its human rights obligations (as part of the UK) and international commitments, several elected lawmakers and Ministers are actively undermining the human rights hard won in other contexts.
So how did reform of abortion law in NI come about?
The process of legal reform was instigated in response to a 2018 Report of the UN Committee on the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), which found the UK responsible for ‘grave and systematic’ breaches of women’s human rights, by failing to provide safe, legal and accessible abortion in a wide range of circumstances. In July 2019 an amendment proposed by Stella Creasy MP was successfully attached to the government’s Northern Ireland (Executive Formation) Bill and was subjected to a vote in Westminster. The amendment passed by 332 votes to 99, requiring the government to liberalise abortion law in Northern Ireland in line with the CEDAW Recommendations. While the UK government would have preferred the NI Assembly to do that itself, it had been suspended since January 2017. The NI(EF) Act 2019 therefore included a ‘Sunset Clause’ which stated that Section 9, decriminalising abortion in NI and paving the way for new regulations reflecting CEDAW, would automatically come into force if the Assembly did not reconvene by midnight on 21st October.
Given the momentous changes afoot, it was surprising there was not more ‘noise’ about the abortion reform within Northern Ireland after the law passed on 9th July. Perhaps this shows a general lack of understanding about human rights or even awareness of UN Conventions such as CEDAW, among disengaged politicians here. (CEDAW is an international treaty adopted in 1979 by the United Nations General Assembly. Described as an international Bill of Rights for women, it was ratified by the UK in 1986. This means the UK had committed 33 years earlier to eliminate discrimination against women in all aspects of life and to protect, promote and fulfil the human rights of women under all circumstances.)
Whatever the reason for their previous reticence, as the clock was running down on 21st October 2019, several MLAs suddenly showed up at Stormont, proclaiming their determination to stop the new law coming into force. They insisted they would pass a new Defence of the Unborn Bill instead. But at this time there was no working Assembly, it having been suspended in January 2017. Nor were there any serious efforts by the MLAs involved to do the ground work to elect a Speaker – which, under Assembly rules, required cross-community support. This meant that no laws could actually be passed on that day. However, like many events that have peppered abortion politics here, this attempt to bypass established processes and procedures, was deeply misleading to the watching public.
With the TV cameras rolling, this was a move of pure political theatre, with no regard for how the Assembly actually works. It is reminiscent of the behaviour of President Donald Trump and his lawyer, Rudy Giuliani in the aftermath of his defeat in the recent US election. While journalists and expert commentators were aware of the legal limitations of the October stunt, these MLAs’ supporters were not. But unlike Trump’s strategy of invoking legal processes to overturn a valid election result, without a credible leg to stand on, the Stormont move was less easy to dismiss. As shown in this piece, the delivery of abortion law on the ground in Northern Ireland has long been dictated by politicians following their own agendas – regardless of what is written in the statute books or handed down by judges through the legitimate process of developing common law. In that context, such a stunt served to reinforce several mistaken beliefs in public consciousness.
International Human Rights
The first is that the human rights can be invoked on behalf of ‘the unborn’. To date, they cannot. In the 2004 case of Vo v France, the European Court of Human Rights decided that a doctor who negligently caused a woman to have an involuntarily abortion due to mistaken identity, had breached the woman’s human rights and not those of her foetus. It refused to treat the foetus as a person holding rights under the European Convention. A different decision would have had widespread implications, not only for abortion laws, but for the potential monitoring of the behaviour of all pregnant women across Europe by those invoking ‘foetal rights’.
The second mistaken belief is that this reform was unfairly ‘imposed’ by Westminster, as the MLAs showing up at Stormont claimed. It was in fact a response to repeated rulings of United Nations bodies (since 1999) and courts both in NI and the UK. All of these decided that the old abortion law breached fundamental human rights. And the UK government, not the NI Executive, has responsibility for human rights. Put simply:
In fact, in February 2016 the Assembly had already voted on a much narrower ‘Northern Irish’ styled reform of the abortion law. MLAs rejected (by 59 to 40) limited reforms allowing abortions in cases of fatal foetal abnormality and sexual crime. Those reforms had been proposed by Justice Minister David Ford in response to a 2015 High Court judgment that banning abortion in such circumstances was incompatible with the European Convention on Human Rights. Had the 59 objecting MLAs not been so short-sighted (and possibly unaware of the wider instruments of human rights in the international field), they might have avoided the intervention of both CEDAW and the UK Parliament altogether. Passing a Northern Irish abortion law that was compliant with the minimum standards of human rights, would have allowed the Assembly to take ownership of the process, engaging the public and enabling people to understand – for once – what was actually happening in this area. But that would have taken sensitivity, awareness and political courage many of them did not possess.
The reform of the old law – removing criminal penalties and stopping all ongoing prosecutions – enabled new Regulations to be proposed. These went far beyond any the NI Assembly had ever considered and there was great outrage, among some NI politicians. Some Unionists claimed, without a hint of irony, that Westminster had no business meddling in its affairs. Weeks earlier many of the same people had declared unwavering support for Boris Johnson’s drive to ‘Get Brexit Done,’ despite the fact that Northern Ireland had voted by a 56% majority to stay in the EU and that with a land border, Brexit affects NI more than the rest of the UK.
Despite these misleading claims, and the taste of chagrin they left in some quarters, the abortion law reform went ahead on 31st March, introducing a new regulatory framework allowing abortion on request up to 12 weeks. This clause mirrors the new law in the Republic of Ireland. In June 2018, Sinn Féin voted to change its position on abortion – agreeing that women should have access to abortions within "a limited gestational period".
The time limit extends to 24 weeks in cases where the pregnancy would cause greater risk of injury to the physical or mental health of the woman, than if it were terminated. No time limit exists in situations of severe foetal impairment or a fatal foetal anomaly, risk to the life of the woman or grave permanent injury to her physical or mental health. These latter provisions mirror some of those in the Abortion Act 1967 in Great Britain, under which an estimated 40 Northern Irish women per week have accessed abortion since then.
Yet, when it was debated in Westminster, DUP MP Carla Lockhart declared the new law would allow “abortion on request for any reason to the point where a baby is capable of being born alive”. Yet, the resulting Regulations, permitted termination beyond 12 weeks only for therapeutic reasons, after a process of certification by at least one healthcare professional. The ‘no time limit’ clause (where a woman’s life is at risk) already existed as a common law defence to the original 1861 abortion prohibition. This is just one example of false and inflammatory claims frequently made by Northern Irish lawmakers about abortion law.
There was concern among activists that such misinformation about the new law would escalate when it came into force on March 31st 2020. What we got however, was little to no public information at all. It is fair to say that many people know very little about the law on abortion. It has a history of being complex and unclear. Those working in the field of reproductive and sexual health might say this is deliberately so. For if the general public in Northern Ireland had been aware of the severe impact it could potentially have on their lives, lawmakers and other powerful figures here - such as the Attorney General - might not have got away with their often, blatant obfuscation and dismissal of the issues.
Accurate information about abortion law before October 2019 was hard to find – unless you conducted academic research in the area. And as someone who has done so for 20 years, it is difficult to have an informed conversation about it with anyone who relied solely upon politicians or their school education to form an opinion. The area too was littered with assumptions, which are often shattered at the worst possible time in a person’s life – when facing an unviable pregnancy. Sarah Ewart was such a person.
Human Rights at Home
In 2013, after a diagnosis of anencephaly in a much wanted pregnancy, Ewart assumed she would be able to get a termination as part of her medical treatment in her own hospital, given that her foetus was not going to survive birth. She was profoundly shocked to discover that she needed to travel to England for one, adding more trauma, expense and delay to an already painful experience. On 30th January 2019 she began another difficult journey. Sarah Ewart put herself forward as a ‘victim’ whose human rights had been breached by NI abortion law.
A previous human rights challenge by the Northern Ireland Human Rights Commission (NIHRC) had gone all the way to the UK Supreme Court in June 2018. But as the Commission had not identified an individual harmed by the law, the Supreme Court said there was no jurisdiction for it to act. However, the majority of judges agreed that the lack of access to legal abortion in Northern Ireland was incompatible with European human rights law in cases of fatal foetal abnormality and sexual crime. As Sarah had ‘standing’ as a human rights bearer (where the NIHRC had none), the Court would this time be in a position to issue a formal declaration of incompatibility under the Human Rights Act 1998, which made the ECHR directly enforceable in UK courts. Such a declaration would give the UK government no choice, but to amend the Northern Irish abortion law to make it complaint with the ECHR.
On 3rd October 2019, the High Court ruled in favour of Ewart, noting that no other woman should have to endure such a trauma as having to leave her own jurisdiction to seek a termination in cases of fatal foetal abnormality. The ruling came just ahead of the coming into force of the legislation passed in Westminster, due to decriminalise abortion in Northern Ireland on 21st October. So, despite the ruling in this historic case, it was the intervention by Westminster that finally brought Northern abortion law into line with the UK’s human rights obligations.
How is the New Law Working in Practice?
On 31st March 2020 the new Abortion (Northern Ireland) Regulations 2020 came into effect. Just one week earlier, a national lockdown was imposed across the UK due to the Covid-19 pandemic. The implementation of the Regulations – the actual provision of abortion services under the new law by the Department of Health in Northern Ireland (DOHNI) - was stalled. It would be tempting to put this delay down to the fact that the NI Minister for Health Robin Swann, was caught up with managing a global pandemic, unprecedented in our time. However, the legal reform had been on the cards since early July the previous year and set in motion in October 2019. The pandemic only became an issue in February 2020. Nothing had been done by the Minister or the Department of Health to even prepare for the commissioning of abortion as a health care service, never mind to ensure its delivery by the date the Regulations came into force.
Legal researchers in this area were well used to the law on the books being undermined by underhand tactics of those charged with upholding it. It came as no surprise to activist lawyers that the hard won reform of abortion law would be effectively invalidated through the failure to actually provide abortion services in Northern Ireland. The global pandemic was the perfect excuse, but it was also the perfect opportunity to show the underlying value judgments being imposed by some in positions of power here.
From 31st March women were told by the NI Office to continue to travel to GB if they needed an abortion, despite most flights being cancelled and exorbitant prices of any remaining open for ‘essential travel’. An eight hour ferry crossing was for most women the only option. Given that most hotels and overnight accommodation were also closed in GB, this wasn’t much of an option. It would be hard to imagine how many more hurdles could be put in the way of anyone trying to access what numerous courts and UN monitoring bodies called a ‘human right’. And for someone with underlying heath conditions who was told to ‘shield’ at home for 12 weeks, or someone living in an abusive / coercive domestic situation, it was impossible.
This failure to enable access to abortion services for those who might need them most, is no accidental effect of the Covid-19 pandemic. In April 2020, DUP First Minister Arlene Foster (who had previously blocked attempts to legalise abortion) said: “I don’t think it’s any secret that I don’t believe that abortion on demand should be available in Northern Ireland. I think it’s a very retrograde step for our society.” Though from a different party (UUP), Health Minister Robin Swann, is undoubtedly affected by the same traditional Unionist political approach to abortion. Nor does he want to rock the boat with the four other DUP Ministers in the Executive. This is the only explanation for the attitude he has taken towards the power given to him by the Abortion (Northern Ireland) Regulations 2020 to commission abortion services within the NI health care system. He has simply refused to use it. And he has used ordinary people’s understandable, lack of awareness of the law and law-making processes to get away with this failure in ministerial responsibility. He has repeatedly said the Regulations did not require him to ‘commission services’. Robin Swann went even further in misleading the public, claiming he needed ‘Executive approval to commission abortion services’. Nowhere is this written in the Abortion (Northern Ireland) Regulations 2020, nor in Section 9 of the Northern Ireland (Executive Formation) Act 2019, under which these Regulations were passed. It is an attempt to obfuscate, confuse and delay legal abortion in Northern Ireland. And like other similar attempts to undermine the law in the past, it is working.
He was put under pressure from other politicians in April and May. Alliance MLA, Paula Bradshaw wrote to the Minister saying he had failed to provide adequate healthcare provision in not ensuring abortion services were available in NI. Trevor Lunn, Independent MLA for Lagan Valley also stated that as they are now legal, the provision of abortion services in NI does not need to be voted on by the Executive or anyone else. The Department of Health subsequently sought (completely unnecessary) advice from the Executive to ‘explore options to provide a limited emergency early medical abortion (EMA) service in NI for the period of the pandemic’. And later in 2020, despite there being no properly commissioned services by DOH, an interim service provision began in sexual and reproductive health (SRH) clinics, whose normal schedule had been suspended due to Covid-19. These clinics, of their own volition, pivoted to providing EMA up until 9 weeks 6 days gestation. This service is accessed via self-referral through Informing Choices NI (formerly the Family Planning Association NI).
Despite this self-directed initiative by SRH clinics, 10 out of the old 26 Council areas in Northern Ireland have no access to early medical abortion services at all. On 5th October 2020, the Northern Health Trust reluctantly advised they were no longer in a position to provide early medical abortions due to lack of resources. The Northern Trust is the largest geographical health trust in NI. This means that at the end of 2020, a large section of the population in Northern Ireland has no access to abortion services at all, despite the promised change made at Westminster in July 2019. For those parts of the country that do have services under the new law, these are limited to early medical abortion, provided through two sets of pills. These are only available up to 10 weeks gestation (9 weeks 6 days), due to limitations as to their effectiveness beyond that point. Legal abortion, through both EMA and surgical methods, was written in the law as being available on request up to 12 weeks. This leaves a two week gap where the law is inoperable. There are no surgical abortion procedures routinely available in Northern Ireland, leaving all the terminations medically required by the law, between 12 and 24 weeks only accessible by travelling to another jurisdiction.
Later abortions happen for a variety of reasons, one of which is a lack of information about access to services. The failure by the Department of Health to commission any services, means that there is no information published by health trusts on how to access the EMA services they are providing (now in 4 out of the 5 trusts) up to 10 weeks. This leads some women to find out about them through alternative sources, too late to access these legal services in their own country. To say very little has changed on the ground in the aftermath of abortion law reform in Northern Ireland, is an understatement. The general public is still in the dark when it comes to making reproductive healthcare decisions. Hurdles to abortion access continue here and appear to be getting greater at a time when they are being lifted everywhere else in the British Isles, during the Covid-19 pandemic. Not only are women in Northern Ireland being denied information about abortions at home here, they are being prevented from having early, safer abortions in their own homes.
Telemedicine – the system whereby patients consult their GPs by telephone or via the internet - has been practiced widely during the 2020 pandemic. Even patients needing to visit Emergency Departments have been asked to call for triage ahead of arriving at Hospital. The need to reduce the risk of cross infection among patients and staff has led to the public and the health service adapting quickly to this new reality. Emergency Departments are running more efficiently than before and people who do not clinically need to be present on any health care premises have been successfully discouraged from overwhelming the NHS. The majority of women accessing early medical abortion, via two sets of pills, do not need to be on health care premises. Yet, in Northern Ireland, which for a time in October 2020 had the highest rate of Covid-19 infection in the UK (and the world), women were required to attend SRH Clinics to take these pills – if they managed to find out about them. This is in direct contradiction to medical advice given on every other service in the NHS and by the World Health Organization.
Telemedicine in the Pandemic
In June 2020, the World Health Organization (WHO)recommended that during the global pandemic, abortion provision should: ‘minimise facility visits and provider–client contacts, through the use of telemedicine and self-management approaches, when applicable, ensuring access to a trained provider if needed.’ In the rest of the UK and in the Republic of Ireland, telemedicine abortion services were introduced accordingly. In Northern Ireland they were not, in clear breach not only of WHO advice, but also the UK government and the NI Executive’s own ‘Stay at Home’ orders in place during the long lockdown and ongoing ‘circuit breakers’. Requiring any individual to attend medical facilities where there is no clinical need to do so, arguably puts all patients and NHS staff working there at risk. The refusal to allow the use of abortion pills to be taken exclusively at home in one part of the UK, when this is allowed in the other three parts, clearly shows that patient safety is not the issue. The real issue is the same as it ever was– not making it ‘easy’ for women to get abortions, whether they are legal or not.
So why is Telemedicine not allowed in Northern Ireland?
Similar to the line taken by Minister Robin Swann, a Department of Health spokesperson said both that: "the Regulations require such terminations to be carried out on Health and Social Care premises” and; that "decisions remain to be taken on the commissioning of abortion services in NI's health service. Commissioning is a significant process that will require a public consultation.” First, it is hard to reconcile these statements. If abortions can only be conducted on health service premises, there would appear to be little to consult anyone about. Apart from that obvious fact, no public consultation is legally required in the text of the Act or the Regulations.
Second, public consultations on abortion in NI tend to garner strategically written, large scale, uniform responses to questions not actually asked. In the consultation preceding the Regulations - which asked the public on the preferred content of a new human rights compliant law - Churches and anti-choice organisations produced standard reform response postcards which responded that the reform should not be happening at all. With this in mind, it is arguable that the Minister and the Department of Health’s reading into the legislation an extraneous need for public consultation, is constructing yet another hurdle in preventing people accessing them.
Third, questions on the mechanics of how legal abortions ought to be provided, should surely be answered by those with medical expertise, knowledge of how healthcare services work and an awareness of the budgets available for them. Asking the general public and inviting mass, uniform, written responses from Churches and interest groups opposed to any services, is a strange way to run a health service. Fortunately, the law itself does not require such a longwinded and contradictory approach to the provision of legal abortion. Unfortunately, the public – not used to reading legislation closely - does not know this. They now see the Minister for Health on a regular basis giving Press Conferences on the Covid-19 pandemic. He has worked hard and built a lot of trust among the public on this issue. So, when he speaks on any issue, they tend to believe what he says.
To add to this obfuscation and confusion, as a result of the Minister and the NI Department of Health refusing to carry out their legal duties of commissioning abortion services, there is no public health information about the services provided independently by the five Health Trusts. There is no way to find out how to get a legal abortion on any of the Department of Health or Health Trust websites. Neither have GPs and health staff been adequately trained in the field of abortion. In October 2020, a spokesperson for activist organisation Alliance for Choice said: “the whole legislation is being treated as a waste of paper…abortion services are not still accessible enough in Northern Ireland.”
In an open letter to Robin Swann, Alliance for Choice and 75 other organisations (including political parties) and individuals, called upon him to implement these abortion care recommendations from the World Health Organization (WHO) immediately. Anti-choice organisations called the request a move to introduce ‘DIY’ abortion, stressing, without medical evidence, that such a practice would put women’s lives at risk. This is blatant misinformation, but without official counter-information based on sound scientific research from the Department of Health, it appears by default to be the information dictating public policy - and at the same time, undermining the new law.
While this is hard enough to swallow, the reality is that if there had been a Minister from a different political party holding the Health portfolio, the Department’s position regarding abortion services in NI would have been very different. Sinn Fein changed it party position to back a law allowing abortion upon request up to 12 weeks in the Republic after the 2018 Referendum, where the public voted by 67% to remove the ‘right to life of the unborn’ from the Constitution. Had a Sinn Fein Minister for Health been appointed in NI, (as before Assembly was suspended in 2017) it would be hard to imagine the Department of Heath refusing to use the power given to it by the new Regulations to ensure the same legislated access to abortion both north and south of the border. But, as has long been the case in in Northern Ireland, personal belief, power sharing and political will are stronger factors than law and human rights - especially when it comes to abortion. Despite fact checking and pressure from well informed and concerned activists, there is still the potential for misinformation among the public about the law and what it really means. There also remains fear among women of the repercussions of even requesting a termination, regardless of its legality. The law might have changed, but the prevailing culture in politics, education and a lack of adequate training on abortion rights, even within medical practice, suggests that the new law has a lot yet to overcome in practice.
What is Missing from the New Law
The Regulations do not require exclusion or ‘safe zones’ to be put in place outside abortion facilities in Northern Ireland, as recommended in the CEDAW Report. This means resistance may come from anti-choice activists to deter people accessing legal services, should they – and information about them – become available. The tactics of increasingly aggressive protesters in the USA during the Trump era, claiming to ‘Make America Great Again’ by harassing women entering reproductive health facilities (shown in a recent ITV Documentary ‘America’s War on Abortion’) is something we to be concerned about. Effectively policed exclusion or ‘bubble’ zones would ensure safe and effective access to services. Without them, harassment of clinic users and staff is likely to be a strategy of those who want to invalidate further the impact of the new law. It will be interesting to see how those responsible for upholding law and order will respond in such an event.
Nor do the Regulations make “age-appropriate, comprehensive and scientifically accurate education on sexual and reproductive health and rights' (covering pregnancy prevention), a compulsory component of the curriculum for adolescents. This was also recommended by CEDAW and arguably would have more impact on reducing abortion rates than the legal ban. Prohibiting abortion has never prevented people seeking abortion. It has driven them to go to great lengths to access abortion elsewhere, or illegally and unsafely in their own country. It invariably leads to later abortions, with unnecessary health implications and a lack of necessary aftercare when things do go wrong. Undoubtedly, such a reform to the education curriculum was not included due to expected resistance from Northern Ireland’s large number of religious schools. Yet, without fact-based education at an appropriate age, it is hard to see how the widespread problem of misinformation or ‘no useful information’ in this area will be overcome.
These two gaps in the new law are likely to be the focus of pro-choice and human rights activism in the near future. They were clearly recommended as necessary in the CEDAW Report, which required the UK to redress breaches of reproductive rights in NI. Their absence in the Regulations, while the Minister and Department of Health are reading in requirements which are not there, only serves to highlight the problem that has dogged both academic and activist efforts to uphold the rule of law in this area: the personal, anti-choice views of those holding legal authority have thwarted it time and again. And a lack of public awareness of these, ‘pseudo legal,’ Trump-like, tactics have enabled them to get away with it. That’s where legal commentators and ‘activist lawyers’ come in…
Further Legal Challenges
Armed with detailed, expert, accurate information, we can prepare for further human rights legal challenges in this area. These might even be necessary to hold the NI Executive and Minister for Health to account for failing to implement the new law. Activist lawyers will no doubt be considering a case based on the European Court of Human Rights precedent in Tysiac v Poland in 2006. It imposed a duty on governments to make abortion accessible where it is legal and not to allow the law to be invalidated through a lack of provision. They would however, need someone like Sarah Ewart, prepared to put themselves forward as not able to access an abortion where international human rights – and now national law – state it is necessary. Such a person – a ‘victim’ of this human rights violation - may not be hard to find in NI. Why? The reality is that, despite the historic legal reform of 2020, many people still have no option but to access abortion in the same ways as others did when it was all but illegal in Northern Ireland.