Decriminalising Abortion in the UK by Sally Sheldon & Kaye Wellings

Author:Sally Sheldon & Kaye Wellings
Language: eng
Format: epub
ISBN: 9781447354031
Publisher: Policy Press

Five

The effects of decriminalisation in Northern Ireland

Marie Fox and Goretti Horgan

Introduction

In July 2019, the Westminster government voted to require the Secretary of State for Northern Ireland to give effect to the report of an influential Committee on the Elimination of Discrimination Against Women (CEDAW) Inquiry, which had found that Northern Irish law breached human rights norms (CEDAW, 2018). As this volume goes to press in late 2019, this radical change to Northern Ireland’s abortion legislation has just come into effect, although details of the new governance regime that will follow have yet to be published. Until October 2019, Northern Ireland was governed by one of the most restrictive legal frameworks for abortion in the world and, as a result, only extremely limited abortion service provision currently exists. From midnight on 21 October 2019, the relevant provisions of the Offences Against the Person Act 1861 were repealed for Northern Ireland, with a moratorium introduced on criminal prosecutions. Effectively, this decriminalises most terminations in Northern Ireland, and, somewhat ironically, places Northern Ireland in the vanguard of the movement to decriminalise abortion in the United Kingdom. However, even before this momentous change occurred, it was clear that Northern Irish women continued to access abortions and that the restrictive abortion governance regime was only sustainable due to the ability of some women – often at significant cost and under threat of prosecution – to travel to avail themselves of abortion care or to access abortion pills online.

This chapter will begin by outlining the law that obtained until October 2019, explaining the limited circumstances in which it was possible lawfully to end a pregnancy within Northern Ireland. It will then assess the adverse impact of criminalisation on women’s health and welfare, drawing on a recent empirical study of the experience of Northern Irish women faced with unwanted pregnancies who were forced either to travel elsewhere for abortion or to use abortion pills outside of formal health services. The following section will outline how the courts and a range of international bodies found that the pre-reform position meant that the UK government breached its international human rights obligations. The chapter will conclude by outlining the clear infrastructure that exists for the provision of abortion services within Northern Ireland, which will be supplemented by measures to be put in place following a period of consultation. Consequently, repeal of the abortion provisions of the 1861 Act will not result in the regulatory vacuum some have predicted.

The legal position in Northern Ireland prior to October 2019

As noted in Chapter Four, the Abortion Act 1967 never extended to Northern Ireland, so the exemption for health professionals who perform terminations on grounds enshrined in that legislation never applied. Consequently, the legal position in Northern Ireland was governed by two very old statutes – the Offences Against the Person Act 1861 and the Criminal Justice Act (Northern Ireland) 1945. As outlined in Chapter One, the 1861 Act created the criminal offences of ‘unlawful procurement of miscarriage’ (section 58) and of knowingly or

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