2Development of law and policy on abortion in Northern Ireland
The current law
9.Abortion is a criminal offence in Northern Ireland under the Offences Against the Person Act 1861. Section 58 makes it a criminal offence to administer drugs or use instruments to procure an abortion and section 59 makes it a criminal offence to supply or procure drugs or any instrument for the purpose of procuring an abortion. Both offences carry a maximum sentence of life imprisonment:
s58 Administering drugs or using instruments to procure abortion
Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life.
s59 Procuring drugs etc to cause abortion
Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be kept in penal servitude.10
10.In England and Wales, abortion is also criminalised under the Offences Against the Person Act 1861 and in Scotland it is criminalised under common law. The Abortion Act 1967 (as amended by the Human Embryology and Fertilisation Act 1990) provides a framework for the circumstances in which abortion can be lawfully performed in England, Scotland and Wales. In Northern Ireland, there is no equivalent to the Abortion Act 1967 and therefore the Offences Against the Person Act remains the substantive law, developed by subsequent caselaw and statute. Abortion in Northern Ireland is therefore a criminal justice policy and the lead department is the Department of Justice (Northern Ireland). The Northern Ireland Office of the UK Government made a written submission to the inquiry in which it explains:
abortion is criminalised, and any intervention to a pregnant woman that is potentially harmful to the foetus must only be carried out with the intention of protecting the woman against physical or mental health issues that are ‘real and serious’ and ‘permanent or long term’.11
11.Department of Health (Northern Ireland) guidance for health and social care professionals sets out the law as follows:
In Northern Ireland termination of pregnancy is lawful if performed in good faith only for the purpose of preserving the life of the woman. The ‘life’ of the woman in this context has been interpreted by the courts as including her physical and mental health;
A termination of pregnancy can therefore be lawful only where the continuance of the pregnancy threatens the life of the woman, or would adversely affect her physical or mental health in a manner that is ‘real and serious’ and ‘permanent or long term.’
In any other circumstance it would be unlawful to perform such a procedure.12
Chronology
1861 The Offences against the Person Act (OAPA) makes it a criminal offence in England, Wales and Northern Ireland for a pregnant woman to use drugs, instruments or any other means with the intent to procure a miscarriage; and for any other person to use drugs, instruments or any other means with the intent procure a miscarriage of a woman (s58).
It is also an offence to procure drugs, instruments or anything else with the knowledge that it is intended for use in procuring a miscarriage (s59).
1939 The R v. Bourne13 case, where a doctor performed an abortion on a 14 year old girl who had been raped by five men, established the principle that abortion would be lawful under the OAPA if a doctor is of the reasonable opinion that the probable consequence of the continuation of the pregnancy is to make a woman a ‘physical or mental wreck’ that will have ‘real and serious’ effects that would be ‘permanent or long term’. This includes preserving the life of the mother.
1945 The Criminal Justice Act (Northern Ireland) introduces an offence of child destruction or causing the death of a child capable of being born alive before it has an existence independent of its mother unless the act was done in good faith for the purpose of preserving the mother’s life.14
1967 The Abortion Act (amended by the Human Fertilisation and Embryology Act 1990) permits abortions in England, Scotland and Wales where:
(a) the pregnancy has not exceeded its twenty-fourth week and the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or
(b) that the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or
(c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or
(d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped.15
1967 Section 5 of the Criminal Law Act (Northern Ireland) creates a legal obligation to report information about criminal offences to the police, unless there is a ‘reasonable excuse’.16
1998 The Northern Ireland Act established the Northern Ireland Assembly. Justice and policing were not devolved at this time.17
2000 Abortion was debated in the Northern Ireland Assembly which passed a motion stating its opposition to the extension of the Abortion Act 1967 to Northern Ireland.18
2010 Justice and policing were devolved to Northern Ireland under the Hillsborough Castle agreement.
February 2016 Northern Ireland Assembly rejected two motions to amend the Justice (No. 2) Bill to legalise abortion in cases where there had been a diagnosis of fatal foetal abnormality and where the pregnancy was as a result of a sexual crime.
February 2016 The Working Group on Fatal Fetal Abnormality was established. It reported to ministers in October 2016 but the report was not published until 2018.
2016 Guidance for health and social care professionals on termination of pregnancy in Northern Ireland was issued. This followed lengthy legal action initiated by the Family Planning Association NI (FPANI) and resulted from draft guidance published for consultation in 2013.19
June 2017 The UK Supreme Court rejected the appeal by A and B v The Secretary of State for Health20 challenging the failure to provide NHS funding in England for abortions performed on women and girls from Northern Ireland. However, the Minister for Women and Equalities subsequently announced that month that funding would be provided primarily through the Government Equalities Office and in October 2017 she announced that women who faced financial hardship would be supported with travel costs.21
January 2017 the Northern Ireland Assembly and Executive ceased functioning.
March 2018 Report of the Committee on the Elimination of Discrimination Against Women was published finding that the UK was in grave and systematic violation of women’s rights (application under the Optional Protocol by FPA, Alliance for Choice, NIWEP).
April 2018 Report of the Working Group on Fatal Fetal Abnormality was published by the Department of Health for Northern Ireland.
June 2018 UK Supreme Court case brought by the Northern Ireland Human Rights Commission was dismissed on the grounds that it did not have standing to bring the case in its own right. However, in obiter comment the majority of judges stated that the prohibition of abortion in the cases of fatal foetal abnormality and sexual crimes was incompatible with Article 8 of the European Convention on Human Rights (right to private and family life). No declaration of incompatibility was made due to the lack of standing of the Commission.22
September 2018 JR76 judicial review of the prosecution of a mother for obtaining abortion pills for her 15-year-old daughter was heard in Belfast High Court. Judgment is pending.23
January 2019 Sarah Ewart’s case challenging the prohibition of abortion where there is a diagnosis of fatal foetal abnormality was heard in Belfast High Court. Judgment is pending.24
What we know about the current situation
Women and girls accessing abortion in public hospitals in Northern Ireland
12.Official data shows that a very small number of women and girls have lawful abortions in public hospitals in Northern Ireland and that this decreased sharply from 51 in 2012/13 to 12 in 2017/18.
Table 1: Medical abortions and terminations of pregnancy, 2007/08 to 2017/1825
|
Year |
Medical abortion |
Termination of pregnancy |
|
2007/08 |
76 |
47 |
|
2008/09 |
71 |
44 |
|
2009/10 |
64 |
36 |
|
2010/11 |
73 |
43 |
|
2011/12 |
56 |
35 |
|
2012/13 |
75 |
51 |
|
2013/14* |
25 |
23 |
|
2014/15 |
22 |
16 |
|
2015/16 |
30 |
16 |
|
2016/17 |
20 |
13 |
|
2017/18 |
32 |
12 |
Source: HSC Trusts
*Break in series.
Figures for medical abortion prior to 1st April 2013 included readmissions with retained products of conception, following a missed miscarriage or a spontaneous abortion that had been treated in the first admission with an evacuation of the products of conception. These are no longer part of the definition of medical abortion.
It should be noted that from the 1st April 2013 retained products of conception in the same episode as the termination that required surgical treatment must be considered a complete termination of pregnancy.
Women and girls travelling to access abortion provision
13.Each year, a significant number of women and girls from Northern Ireland travel away from home to have a lawful abortion in another jurisdiction and we have received a lot of evidence from women setting out their experiences about this.26 One woman, who gave oral evidence to the inquiry in Derry/Londonderry, said that she became pregnant when she was 25, living in poverty and was already a lone parent of a young son. She told the Committee; “We lived in a cold house. I wanted to go to university and I wanted to get a job at the end of it, to be able to provide a warm, safe home and better lifestyle for my child.” She said that she knew she needed an abortion but when she telephoned the clinic in England they told her she needed to know exactly how pregnant she was before she could book. She went to her local hospital, which she describes as “an absolutely horrendous experience”:
I told the male doctor why I was there and why I was hoping to have a scan. He made me quite aware of his views and that it was not a good idea and he couldn’t help me. He attempted to scan me. It did not work. I ended up just phoning up the clinic and telling the lie that it had been confirmed that I was five weeks pregnant, because I had no other way out of that.27
14.The witness told us that a friend gave her the money for the procedure, for the flights and for taxis and food in the airport on the way back. She said that she had to have a surgical abortion because she was five weeks pregnant and could not afford to stay overnight because she did not have childcare. This meant that she had to wait four weeks for the procedure. She told us about what this waiting period was like:
So I had to pretend that everything was okay for four weeks and I had to lie to my family and friends, because of the shame and because of the notions that we had, and to some extent still have, in Northern Ireland. It was awful. I was trying to look after myself, trying to carry on as normal, when nothing was normal and it needed to stop; I needed to be able to have my abortion and then move on with my life, look after my son, and go to university.28
She went on to say; “What affected me most was not that I found myself pregnant when I could not be—that is a normal thing that happens to many women—what affected me was having to wait for four weeks and having to fly and having to be alone.”29
15.We also took evidence in Belfast from Dawn Purvis, former CEO of the (now closed) Marie Stopes Clinic in Belfast, about a 12-year-old girl who had become pregnant as the result of rape and had to travel to England for an abortion because the law would not permit her to be treated in Northern Ireland. She was accompanied by the police who had to attend the surgical procedure to seize the ‘products of conception’ for evidence and then travelled back with her. Ms Purvis said; “That is inhumane treatment of a young child who did not have a passport, had never left the country and she had been removed from family, friends and everything else to go through that.”30
UK Government funding for women and girls to access abortion in England
16.Prior to 2017, women and girls in Northern Ireland had to pay to access abortion services in England, however, following the Supreme Court dismissing an appeal challenging the lack of access to free abortions, the then Minister for Women and Equalities, Rt Hon. Justine Greening MP, announced a new scheme so that women and girls in Northern Ireland could access free abortions on the NHS in England. The UK Department of Health and Social Care says that statistics show that “There has been an increase in the number of women from Northern Ireland having an abortion in England and Wales since the funding announcement [in June 2017]” and that:
In 2017 there were 861 abortions for women from Northern Ireland. This is an increase from 2016 and is the highest level since 2012 (905). However, looking at the historical series, numbers of Northern Ireland residents having an abortion in England and Wales has generally declined since a peak of 1,855 in 1990.31
Women and girls in Northern Ireland purchasing abortion pills online
17.We have heard evidence about women and girls unlawfully purchasing abortion pills from online providers. Alliance for Choice says in its submission that at least 400 packages of safe but illegal abortion pills were sent to Northern Ireland in 2017 from one online provider.32
18.The Royal College of Obstetricians and Gynaecologists told us that they were particularly concerned that the barriers to obtaining an abortion in Northern Ireland mean, “increasing numbers of women purchasing abortion pills online, taking them without any medical expertise and support, delaying seeking care if there are complications and putting themselves at risk of life in prison.”33
Prosecutions
19.The CEDAW report states that since 2000 the Police have investigated over 30 cases of individuals suspected of procuring an abortion in Northern Ireland. It says that between 2006 and 2015, the PSNI (Police Service of Northern Ireland) made 11 arrests related to illegal abortion. Between 2011 and 2016, five people were questioned and arrested for possession of abortifacients; two were convicted. Amnesty International UK and the FPA say in their joint submission to the inquiry:
In April 2016 a woman was given a three month suspended sentence for self-inducing an abortion because she could not afford the cost of travel to England and the expense of a private procedure.
In January 2017, a man and a woman accepted formal cautions under the Offences Against the Person Act 1861 (1861 Act) for the same offences. Charges were withdrawn against the pair after a judge imposed a ban on identifying the woman due to the heightened risk of suicide resulting from any publicity surrounding the case.34
20.However, witnesses at the oral evidence session in Antrim denied that in reality women would be jailed for taking abortion pills. Marion Woods of Both Lives Matter which advocates for the retention of the existing law on abortion told us that; “Women are scared because of the activism and the constant use of the phrase ‘criminalisation’. There is no woman in Northern Ireland sitting in jail right now because she accessed abortion or took abortion pills.”35
21.We asked witnesses in the Ministerial and official oral evidence session in Westminster on 27 February when they thought it was in the public interest to prosecute a woman or girl for procuring an abortion. Maura McCallion from the office of the Attorney General for Northern Ireland told us that was a matter for the Director of Public Prosecutions to assess and the Secretary of State for Northern Ireland said it was not appropriate for her to comment. Minister for Women and Equalities, Rt Hon. Penny Mordaunt MP, told us; “I would refer to the point I made earlier about this being a criminal framework as opposed to being about healthcare. That is a problem.”36
12 Guidance for Health and Social Care Professionals on Termination of Pregnancy in Northern Ireland, March 2016
13 R v Bourne [1939] 1 K. B. 687
18 Motion moved by Jim Wells MLA “That this Assembly is opposed to the extension of the Abortion Act 1967 to Northern Ireland.”, Northern Ireland Assembly, 20 June 2000
19 Guidance for Health and Social Care Professionals on Termination of Pregnancy in Northern Ireland, March 2016
20 R (on the application of A and B) (Appellants) v Secretary of State for Health (Respondent) [2017] UKSC 41
22 In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland), [2018] UKSC 27
23 We will not be considering this case as it is sub-judice.
24 We will not be considering this case as it is sub-judice.
25 Northern Ireland Termination of Pregnancy Statistics 2017/18, Department of Health, January 2019
26 Alliance for Choice (ANI0370), Oral evidence session Derry / Londonderry, Abortion Rights Campaign (ANI0222), Marie Stopes UK (ANI0201), Dr Diane Urquhart and Dr Lindsey Earner-Byrne (ANI0199)
31 Abortion Statistics, England and Wales: 2017 Summary information from the abortion notification forms returned to the Chief Medical Officers of England and Wales, Department of Health and Social Care, June 2018, revised December 2018
Published: 25 April 2019