Abortion in Northern Ireland: is change on the cards?

How does the law in Northern Ireland differ from the rest of the UK?

Abortion in England, Wales, and Scotland was liberalised by the Abortion Act 1967. This allows an abortion up to 24 weeks’ gestation if two doctors certify that continuing the pregnancy would involve greater risk than termination to the physical or mental health of the pregnant woman or any of her existing children. Abortions after 24 weeks are allowed if continuing the pregnancy would cause greater risk than termination to the life of the woman, to prevent grave permanent injury to her physical or mental health, or when there is a substantial risk that the child, if born, would be seriously handicapped.

The law in Northern Ireland is still governed by the Offences against the Person Act 1861. This provides that anyone who unlawfully administers a “poison or other noxious thing” or unlawfully uses any instrument with intent to procure a miscarriage is guilty of a felony with a maximum penalty of life imprisonment. A woman who unlawfully takes a substance herself or uses an instrument with the intention of procuring her own miscarriage faces the same penalty.

How has the law affected access to abortion in Northern Ireland?

Only 16 NHS abortions were carried out in the province in 2014-15.1 Doctors say the law is uncertain and they fear they could face prison if they advise on or perform abortions.2 3 “What we’re calling on our politicians to do is to give us clear guidance on what’s within the law,” said John O’Kelly, chair of the Royal College of General Practitioners in Northern Ireland.

Thousands of pregnant women and girls have travelled to England for abortions, but they are not entitled to free NHS treatment in England so have to find between £400 (€525; $570) and £2000 for expenses and private treatment. Many have taken to buying abortion pills from abroad over the internet. But two women have been charged and are awaiting trial for taking this step: a mother accused of buying pills for her underage daughter and a 21 year old woman charged with unlawfully procuring mifepristone and misoprostol and using them to cause a miscarriage.4 5

How has the law been challenged and what was the outcome?

The Northern Ireland Human Rights Commission argued at the High Court in Belfast that the law breaches the European Convention on Human Rights in not allowing abortions in cases of serious fetal abnormalities and when the pregnancy is the result of rape or incest. Mr Justice Horner ruled in November 2015 that the ban in cases of abnormalities that would prevent a child from surviving once born (but not other serious abnormalities) and in cases of rape or incest is incompatible with the convention.6 In December he made a formal declaration of incompatibility.7

What is the effect of the declaration of incompatibility?

The law remains the same and the onus is on the province’s legislature, the Northern Ireland Assembly, to take action to amend the law to make it compatible with the convention.

How likely is this to happen?

Unlikely any time soon. The predominance of Catholics and Ulster Protestants, two faith groups with a strong antiabortion tradition, makes the issue a hot potato in Northern Ireland. The province’s justice minister and attorney general have lodged an appeal against the judgment at the Court of Appeal for Northern Ireland. After that, predicts David Russell, deputy director of the Human Rights Commission, “It is likely to go all the way to the UK Supreme Court.” Barbara Hewson, a barrister specialising in reproductive rights, says, “You might get a very liberal decision out of the Supreme Court. Why should a 19th century criminal statute still govern healthcare needs for women in one part of the United Kingdom?”