Abortion law in the UK is plagued by hypocrisy and cowardice. Nowhere more so than in Northern Ireland.
As England, Wales and Scotland last week marked the 50th anniversary of the Abortion Act 1967, women in Northern Ireland were left out of the reflections and commemorations. Instead, their voices were heard in the Supreme Court case on whether the extremely restrictive abortion laws in the jurisdiction amount to a breach of the European Convention on Human Rights (ECHR).
In the same week, the government announced details of a scheme that will provide free abortion services in England for women travelling from Northern Ireland. This move is one of the most progressive changes in recent history for Northern Ireland women’s rights and should be welcomed.
But it is no more than a sticking plaster. The announcement by Justine Greening, equalities minister, does nothing to change the cruel and archaic abortion ban within Northern Ireland.
The Abortion Act may be deeply flawed and anachronistic but we must not forget that women in Northern Ireland are still waiting for the rights it confers. Travel solutions compound and perpetrate the hypocrisy that plagues this issue in Ireland, both north and south. They must never be seen as permanent.
In a year where a spotlight has been shone on women in Northern Ireland, a win in the Supreme Court might be the boost that makes a lasting difference.
A major step – but not a solution
The 1967 Abortion Act legalised abortion under certain circumstances in England and Wales and Scotland but was never extended to Northern Ireland. Abortion in Northern Ireland remains banned except under very limited circumstances. The maximum sentence is life imprisonment and there are no exceptions for fatal foetal abnormalities, rape or incest.
Between 2010 and 2017, there have been six prosecutions under these laws in Northern Ireland. A 21-year old woman received a custodial sentence for procuring and taking abortion pills. Some women take even more desperate and unsafe measures to end an unwanted pregnancy. Countless others are forced to carry unwanted pregnancies to term.
As a result, women in Northern Ireland face stark choices. Over 700 women every year travel to Great Britain from Northern Ireland to terminate their pregnancies (abortion is even more restricted in the Republic of Ireland so they have to make an overseas journey). Until now they have had to pay for these services privately, at a cost of up to £2,000, because of a bar on women from Northern Ireland accessing abortion services on the NHS, despite Northern Ireland women paying the same national insurance and tax as their sisters elsewhere in the UK.
Hundreds of women have been forced to turn to charity or take out loans from unscrupulous money lenders in order to fund a procedure available for free on the NHS to other UK residents.
Now, at least some of these hardships and injustices are to be alleviated. According to Greening’s announcement, from the end of the year, women from Northern Ireland will be eligible for travel and accommodation costs to be covered for women on low income, procedures free at the point of delivery, rather than paid for upfront and reimbursed, and a central telephone booking system through which clients will be able to arrange an appointment with a healthcare professional in England
Women in Northern Ireland have been awaiting details of the scheme since June when Chancellor Philip Hammond first announced the introduction of the policy. The policy came about as a result of a surprise government U-turn following a motion to amend the Queen’s Speech put forward by Labour MP Stella Creasy in June. Since then, Creasy has been working with pro-choice campaigners and Justine Greening’s office to put meat on the bones of the policy.
The London-Irish Abortion Rights Campaign, who along with our friends and allies in other pro-choice organisations has been working with Creasy and Greening, very much welcomed the announcement. We particularly applauded the confirmation that travel costs will be covered for some low-income women and that the service will be free at the point of use. For women who have had to find what may have been a prohibitive sum of money quickly, this scheme will make a huge difference.
Travel is not a permanent solution
This is undoubtedly a major step but it is very far from being a solution. It is inherently unstable. Women’s most basic rights should not be subject to the whim of government policy hastily concocted in the light of tight parliamentary arithmetic.
Furthermore, in its substance it is a mere sticking plaster. Exporting the problem to take advantage of a more liberal regime in a nearby country is not a permanent fix.
Many women cannot travel, for a whole host of reasons. They may not have the money (Greening’s proposals to provide means-tested funding for travel will apply only to those on the very lowest incomes), travel papers, childcare, time off work, good enough physical and mental health and capacity, access to relevant information, or whatever it is they need to be able to make the journey. Some have an abusive partner who conceals their papers and controls their every move. These women need abortions too.
This clearly illustrates that access to abortion is an issue of social justice. It is one law for the rich and the ‘able’, and another for the poor, vulnerable and marginalised.
Moreover, insisting on travel solutions for abortion risks compounding the problem. It allows those in power to ignore the fact that abortion is basic healthcare and should be provided safely and legally wherever it is needed and wanted. It permits politicians and religious leaders to indulge in a fantasy that abortions do not happen in their – clean, pure, abortion-free – back yard. As a common refrain of the pro-choice movement in Northern Ireland and Ireland goes: ‘Not not at all, just not here.’
Most of all, the guarantee of free, safe, legal abortion is a measure of equality, fairness and respect for women’s basic healthcare needs and human rights. Northern Ireland clearly falls far short on all these markers.
Political change in the near future seems a distant dream. The Northern Ireland Assembly has been dissolved since January 2017 with no immediate prospect of reforming.
Not that women in Northern Ireland could rely on it in any event. The Assembly, dominated by the ultra-conservative Democratic Unionist Party, has time again voted down or disrupted any attempt to liberalise abortion laws, including bills and consultations around introducing exceptions for rape and incest. Only two parties – People Before Profit and the Green Party – identify as pro-choice; their share of the vote is negligible.
Recent reliable polling suggests a strong desire for change on abortion law among the Northern Ireland population. In this post-conflict society, voting occurs almost exclusively along constitutional (or, ‘green and orange’) lines rather than social issues. Put simply, a pro-choice DUP voter will vote for a DUP candidate, regardless of its stance on abortion, to ensure that the nationalist Sinn Fein candidate will not get in. So there is no impetus for politicians in the major parties to alter their policies.
A cowardly UK Parliament has not acted on what it dismisses as a devolved issue, maintaining the fiction that Northern Ireland is a normal, functioning democracy.
Even more disgracefully, it has failed to acknowledge the fundamental human rights that sit above devolved issues of healthcare and criminal justice. Responsibility for those human rights fall squarely on the desk of the UK Government. It is the UK that is the signatory to the European Convention on Human Rights and those rights are guaranteed to the people of Northern Ireland under the Good Friday Agreement.
Can the courts help?
In the absence of political action, the question of women’s most fundamental rights has fallen to the courts.
A three-day hearing took place last week in the Supreme Court in which the Northern Ireland Human Rights Commission’s (NIHRC) sought a declaration that the failure to provide exceptions to the abortion ban for rape, incest or fatal foetal abnormalities is a breach of Article 3 (the prohibition on torture, inhuman or degrading treatment or punishment); Article 8 (the right to respect for one’s private and family life); and Article 14 (the right to freedom from discrimination).
In November 2015 the High Court in Belfast decided that failure to provide an exception for fatal foetal abnormalities at any time during pregnancy and in cases where the pregnancy is a consequence of rape or incest up to 24 weeks gestation breaches Article 8 ECHR, but not Articles 3 or 14 ECHR.
In December 2015 the High Court in Belfast granted a declaration of incompatibility with Article 8 ECHR under the Human Rights Act 1998.
In June 2017, the Court of Appeal in Belfast overturned the High Court’s ruling, finding that there was no incompatibility with any human rights law on the issues that it was asked to consider. The NIHRC was given permission to appeal this decision to the UK Supreme Court.
Exporting the problem
The hypocrisy of the situation in Northern Ireland was made clear to the Supreme Court. Ashleigh Topley, who was denied an abortion for a fatal foetal abnormality and was forced to give birth to her stillborn daughter, told the Supreme Court how exporting the problem ‘has allowed those who see fit to claim doctrinal purity in their opposition to abortion in the full realization that this is not the position in fact’.
The court also heard from Dawn Purvis, former programme director of Marie Stopes International in Belfast, who has witnessed first-hand how the lack of abortion services on the ground compounds ‘the severe levels of degradation, humiliation and pain that women have to endure in already emotionally painful circumstances’.
Change needs to happen and it needs to happen now. If the Supreme Court makes a declaration of incompatibility in respect of one or more of the articles of the ECHR, this of course would have no direct legal effect. It would push the issue back into the political arena. The government must act in response. UK governments have patchy form in areas considered particularly controversial. A declaration of incompatibility was made in respect of prisoners’ voting rights in 2007 and still has not been acted upon.
As we mark 50 years of reproductive rights in the UK, we must also remember how women in Northern Ireland have been consistently failed continue to be let down. Women in Northern Ireland cannot be forced to wait another 50 years for the basic healthcare rights women have elsewhere in the UK. Of course, the Abortion Act 1967 does not go far enough and, disgracefully, abortion remains on the criminal statute books in England and Wales and Scotland.
The hope is that rights for Northern Ireland women can be won alongside broader decriminalisation in all of the UK. The London-Irish Abortion Rights Campaign supports and stands in solidarity with others in the driver towards this goal.
Until that happens, it is hard to disagree with Ashleigh Topley who told the Supreme Court, “The hypocrisy that attaches to this issue diminishes us all.”
The Northern Ireland Abortion Rights Movement Honoured By Liberty
The road to free, safe and legal abortion in Northern Ireland has been a long and lonely one for many campaigners, particularly those who have fought the issue in the most hostile of environments.
On Tuesday last week, Alliance for Choice, the London-Irish Abortion Rights Campaign, lawyer and campaigner Caoilfhionn Gallagher QC and the Family Planning Association collected the Liberty Long Walk Award on behalf of all those who have fought and continue to fight for women and girls to have access to basic rights over their own bodies.
You can find out about the work of the London-Irish Abortion Rights Campaign
Watch our latest video here.
This article was first published on October 30, 2017
Barbara is a former solicitor and a member of the London-Irish Abortion Rights campaign