The UK’s Abortion Deficit.
By Grace Moran-Birch
In the UK, free and ready access to abortion is taken for granted. However, legislative asymmetries caused by devolution mean that this right is not a guaranteed throughout the different UK regions.
Abortion has traditionally, been a problematic issue within Ireland. The political landscape has been dominated by religious ideologies and the conservative nature of citizens, in both the Republic of Ireland and the Northern Ireland, has meant the right to reproductive control has not always been guaranteed. The Republic of Ireland changed its stance in 2018 following a referendum in which 66.4% of voters chose to repeal the Eighth Amendment, which criminalised abortion.[1] Northern Ireland followed suit by legalising abortion in 2019. However, this was only achieved through an amendment to the NI Executive Formation Bill (NI EF Bill).
Abortion in Northern Ireland was previously governed by the Offences Against the Person Act 1861, Criminal Justice (Northern Ireland) Act and Infant Life Preservation Act 1945.[2] In practice, abortion was only permitted in Northern Ireland if the pregnant person’s life was at risk or if there was a risk of permanent and serious damage to their health. [3] Even in extreme cases of fatal foetal abnormality, people would not be allowed an abortion. Many people travelled to England to receive the procedure but, in doing so faced fear of prosecution upon their return.
In 2019, Stella Creasy, Labour MP for Walthamstow, seized the opportunity, following Stormont’s collapse in 2017, to propose an amendment to the NI EF Bill which would allow the Westminster Government to legislate on abortion if the devolved government was not restored by 21st October 2019. This was passed on the condition that a future assembly would be able to overturn or amend the law. The amendment passed and a new legal framework was introduced in March 2020.
The passing of the NI EF Bill broadened Northern Ireland’s restrictive approach. Chapter 2 of the UK Government consultation response to the ‘Implementation of the legal duty under section 9 of the Northern Ireland (Executive Formation etc) Act 2019’ outlines the new framework for access to abortion services in Northern Ireland.[4] This requires any provisions to be made in line with the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). It goes on to provide for unconditional termination up to 12 weeks, conditional terminations up to 24 weeks, and unlimited termination for cases of fatal foetal abnormality and risk to the pregnant person’s life or risk of grave permanent injury.[5] It further repealed sections 58 and 59 of the Offences Against the Person Act 1961 which made it an offence to attempt to procure an abortion.[6] This decriminalised abortion and expanded situations in which procedures would be permitted.
The passing of the NI EF Bill was fraught with political motivations and problems. The amendment was a threat aimed at encouraging the devolved government to resume at Stormont. It was opposed on both sides by the DUP and Sinn Féin.
Three years later, abortion remains inaccessible in Northern Ireland. Whilst, legally, abortion has been decriminalised, in practice, access to services is restricted. Provisions are inadequate and it has been suggested that over a third of Northern Ireland have no access to abortion services at all.[7] This has resulted in a ‘post-code lottery’ for abortion services.[8] Whilst pregnant people are forced to travel to England to access services which are unavailable in their own country, COVID-19 travel restrictions emphasised the urgent need for wide-spread, accessible, domestic services in Northern Ireland.
The Northern Ireland Human Rights Commission, Informing Choices NI and Amnesty International have called on the Northern Irish Executive and Health Secretary to commission abortion services throughout the region.[9] But effective government at Stormont is yet to reappear. Westminster has suggested that if permanent services are not commissioned throughout Northern Ireland, it will step in.[10] It has been suggested that in doing so, Westminster are overstepping their constitutional boundaries and infringing on the devolved government’s power. However, the UK’s human rights obligations to the European Convention of Human Rights embedded in domestic law through the Human Rights Act 1998 mean that Westminster have an international legal obligation to protect human rights. The asymmetrical access to abortion means that people’s rights within the UK are discriminatorily protected. Westminster is right to step in, in order to ensure that the right to abortion is equally accessible throughout the whole UK.
The right to abortion within the UK should be symmetrical throughout the four different regions. wherever you are in the UK, you should have the right to abortion. In practice, this means all people should have ready access to free abortions in line with the statutory limitations. The burden now lies on Westminster to step in and commission services in Northern Ireland, in the absence of an effective devolved government.
[1] https://www.bbc.co.uk/news/world-europe-44256152 <<accessed 9 November 2022>>
[2] https://www.bbc.co.uk/news/uk-northern-ireland-politics-56041849
[3] https://www.bbc.co.uk/news/uk-northern-ireland-politics-56041849
[4]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/875380/FINAL_Government_response_-_Northern_Ireland_abortion_framework.pdf
[5] Ibid., pp10
[6] https://lordslibrary.parliament.uk/abortion-law-in-northern-ireland/
[7] https://www.bbc.co.uk/news/uk-northern-ireland-54621779
[8] https://www.amnesty.org.uk/press-releases/northern-ireland-women-blocked-abortion-care-one-year-law-change
[9] https://www.amnesty.org.uk/press-releases/northern-ireland-abortion-failure-commission-services-heads-court
[10] https://www.bbc.co.uk/news/uk-northern-ireland-60864729
