In 2013, Sarah Ewert, a Northern Irish woman, was told that her unborn child had no prospect of surviving outside the womb. Despite this, she was forced to go to England to terminate the pregnancy.[1] Every year, hundreds of Northern Irish women share her plight because Northern Ireland’s abortion laws state that abortion is only lawful if done in good faith to preserve the life of the mother.[2]
Calls for reform to laws prohibiting abortion in Northern Ireland have echoed loudly over recently years. A landmark appeal in the UK Supreme Court is set to argue that Northern Ireland’s abortion law breaches the European Convention on Human Rights (ECHR). This appeal has been brought by the Northern Ireland Human Rights Commission (NIHRC). The NIHRC will argue the ban on abortion is discriminatory and breaches Article 3, 8 and 14 of the ECHR.[3]
To try and soften the impact of this oppressive law, the UK government announced in June 2017 that it would offer Northern Ireland women free abortion services in England. As such, from June onwards, the three main abortion providers in England have not charged women residing in Northern Ireland for abortion services.[4] But surely this should not be necessary? As European societies are beginning to embrace a more progressive approach to the rights of women, Northern Ireland’s approach to abortion law is outdated and restrictive compared to English law.
In light of these recent events, it would be worthwhile to compare abortion laws in Northern Ireland, and examine why these laws remain on the books while those in the rest of the UK have long since been repealed. Then, this article will examine whether these laws breach the ECHR and what the rationales are for whether Northern Ireland should adopt a more liberal approach to abortion.
On a map of the world’s abortion laws produced by the Center for Reproductive Rights, Northern Ireland was ranked in the second most restrictive category.[5] This category mainly includes states that only allow abortion to save the life of the woman, such as Pakistan and Saudi Arabia. What, exactly, are these restrictive laws?.
Abortion in Northern Ireland is governed by Sections 58 and 59 of the Offences Against the Person Act 1861 and Sections 25 and 26 of the Criminal Justice Act (Northern Ireland) 1945.
First, let us look at Section 58 and 59 of the Offences Against the Person Act 1861:
58 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 . . .
59 Procuring drugs, &c. 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 . . .
These provisions make it an offence for a woman to have or take steps towards having an abortion. Such offences are technically punishable with a life sentence. Anyone who supplies a woman with a noxious thing or instrument with the knowledge that it is intended to be used to procure a miscarriage will also be guilty of an offence. In essence, Northern Ireland’s approach to abortion is that it is punishable with the same penal sentence that murder or attempted murder is.
Section 25 of the Criminal Justice Act (Northern Ireland) 1945 qualifies this offence further in relation to the mother:
25 Punishment for child destruction.
(1) Subject as hereafter in this sub-section provided, any person who, with intent to destroy the life of a child then capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit, of child destruction, and shall be liable on conviction thereof on indictment to penal servitude for life:
Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother.
(2) For the purposes of this and the next succeeding section, evidence that a woman had at any material time been pregnant for a period of twenty-eight weeks or more shall be prima facie proof that she was at that time pregnant of a child then capable of being born alive.
Under Section 25, abortion is only lawful in cases where the act that caused the death of the child was done to preserve the life of the mother. Therefore, even where the child would not survive outside of the womb or would be born with serious disability, abortion would be unlawful under Section 25.
How should these offences be considered in light of the European Convention on Human Rights? Are they in breach of the rights conferred by the ECHR?
In The Northern Ireland Human Rights Commission’s Application (2015),[6] the High Court of Northern Ireland found that Northern Irish laws governing abortion was incompatible with Article 8 of the ECHR:
“ARTICLE 8: RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE
(1) Everyone has the right to respect for his private and family life, his home and his correspondence
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Before considering whether Article 8 was breached, the court looked at the issue of whether a foetus has a right to life under Article 2 of the ECHR. The Strasbourg court in Vo v France (2005) held at paragraph [85] that determining when human life begins is a matter for each Member State falling as it does within that State’s margin of appreciation.[7] The Supreme Court of the Republic of Ireland has interpreted the right to life as commencing “from the date of conception” (per Hamilton P, Attorney General (SPUC) v Open Door Counselling Ltd).[8] In England and Wales, however, Paton v British Pregnancy Advisory Services Trustees and Another held that the foetus is not a legal person.[9]
One of the main issues outlined by Horner J in NIHRC Application was that if it is “morally wrong” to abort a foetus and the foetus has a right to life in Northern Ireland, then it does not make sense that abortion is freely available elsewhere and the necessary services can be accessed. He argued that “the protection of morals should not contemplate a restriction that bites on the impoverished but not the wealthy” [142] who can afford to travel to England to have abortions. Whilst accepting that the OAPA 1861 and CJA (NI) 1945 provide laws for interfering with the right to private life and autonomy, it was held there was a legitimate aim in protecting the life of the foetus but it could not be said that there was a legitimate aim in protecting the morals of the people.[10] Northern Ireland’s abortion law in this case was therefore considered to be in breach of Article 8 and thus this breach should be considered in relation to whether a more liberal approach needs to be adopted in Northern Ireland.
In contrast to Northern Ireland, England and Wales, along with Scotland, is the second most liberal jurisdiction on the world map of abortion laws.[11] Abortion in England and Wales is governed by the Abortion Act 1967. Section 1 of this Act outlines the grounds on which abortion is considered lawful:
Section 1 - Medical termination of pregnancy.
(1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith—
(a) that the pregnancy has not exceeded its twenty-fourth week and that 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.
The abortion must be approved by two registered medical practitioners, except in the case of an emergency as according to section 1(4) where a registered practitioner is of the opinion, formed in good faith, that immediate termination is necessary to save the life or prevent the grave permanent injury to the physical or mental health of the mother.
Furthermore, Section 6 of the Act essentially abrogates “the law relating to abortion”, that is, Sections 58 and 59 of the Offences against the Person Act 1861.
Initially, this would only seem a slightly more liberal approach than that taken by Northern Ireland - unlawful abortion can still lead to life imprisonment. However, in England and Wales a woman has wider grounds on which to make a case for terminating the pregnancy compared to those in Northern Ireland, where the only lawful ground for abortion would likely be 1(c). Furthermore, in England and Wales the risk of injury to mental health under 1(a) is often interpreted liberally to enable women to access abortion when they need it. In C v S,[12] the court held that a foetus that, although showing signs of life in the womb, would be incapable of breathing naturally or with the aid of a ventilator cannot be properly described as “capable of being born alive”. Therefore, termination of the pregnancy was held not be an offence under Section 1(1) of the Infant Life (Preservation) Act 1929 and abortion was lawful, highlighting the liberal attitude of the English courts compared to Northern Ireland.
Furthermore, abortions can also still be carried out after 24 weeks of pregnancy in certain circumstances, such as if the mother’s life is at risk (subsection (c)) or the child would be born with a severe disability (subsection (d)).[13] The fact that during 2014/15, there were 16 terminations of pregnancy in hospitals in Northern Ireland,[14] whereas England and Wales had over 184,571 abortions[15] illustrates the more liberal approach to abortion in England and Wales.
If such a liberal approach permits greater access to abortion, then why does Northern Ireland adopt such an approach?
"A doctor who operates without the consent of his patient, save in cases of emergency or mental disability, is guilty of the civil wrong of trespass to the person; he is also guilty of the criminal offence of assault." [16]
This was part of Lord Scarman’s celebrated judgement in Sidaway v Board of Governors of the Bethlem Royal Hospital, outlining the general approach of the United Kingdom to medical consent and autonomy. This autonomy-based approach has since been affirmed by the Supreme Court in Montgomery v Lanarkshire Health Board[17] in 2015. A person cannot be forced to undergo treatment – it would be illegal to force someone to donate an organ, for example. Even when a person has died, their consent to being on the donor register is a necessary requirement before any organs can be taken. This illustrates the concept of bodily autonomy. Yet, the question arises as to why the UK refuses to acknowledge the bodily autonomy of pregnant women in Northern Ireland who want an abortion. Why are we asking pregnant women to accept a lower standard of bodily autonomy than that which we grant to dead bodies?
Furthermore, Northern Ireland allowing for abortion under similar grounds to England and Wales would protect against those who are unable to travel to England from using dangerous methods to try and terminate the pregnancy. If justifying such restrictions on abortion for moral grounds is taken in Northern Ireland, then it simply does not make sense to still force women to then travel to England for an abortion instead. For these moral justifications to make sense, then it would not make sense for abortion to be any more acceptable in England than it is in Northern Ireland. To prevent discrimination against and to protect those who are vulnerable and cannot afford the travel costs, it would make sense for Northern Ireland to widen the grounds on which abortions can be sought.
Northern Ireland’s approach to abortion law can be seen as outdated and failing to embrace the bodily autonomy that women have. Is it right to force a woman to undergo a pregnancy that may have an extreme emotional or physical toll on her, when the right to life under Article 2 for a foetus is contentious? As more states have begun to take a liberal approach to abortion law, the time is ripe for the Supreme Court in this new appeal to rule that Northern Ireland to embrace the approach of England, Scotland and Wales to fit more comfortably with the ECHR.
