By: Holly Nesbitt
1861: Offences Against the Person Act 1861 - Going back 160 years, abortion was historically governed across the United Kingdom by the Offences Against the Person Act 1861 (OAPA 1861)[1]. Section 58 criminalized a woman who had an abortion and Section 59 criminalized anyone who tried to help a woman abort[2]. For offences under either section, the maximum sentence available was life imprisonment[3].
1938: R v Bourne[4] – The OAPA 1861 made no exceptions to the law (for instance, in cases of rape or the life of the mother). However, this was mitigated in 1938. By acquitting Dr Aleck Bourne, a physician who performed the termination of a pregnancy on a fourteen-year-old girl (she had been gang raped by soldiers and became pregnant as a result) the court created a common law exception to OATP 1861[5]. This provided a defence in law across the UK to any doctor who ‘in good faith’ carried out an abortion, where the continuation of that pregnancy created ‘a grave risk’ that the woman would become a ‘mental or physical wreck’[6].
1945: Criminal Justice Act (Northern Ireland) 1945: when the OAPA 1861 was enacted, it applied to the entire island of Ireland. Under the Government of Ireland Act 1920, criminal law was devolved[7], and in 1945 the Northern Ireland Parliament enacted the Criminal Justice Act (Northern Ireland), which permitted abortions to be performed solely “in good faith for the purpose only of preserving the life of the mother”[8].
1967: Abortion Act 1967 – The ambiguous definition of the exception in Bourne was refined and given statutory basis in the Abortion Act 1967, which gave clear conditions for abortions to be performed legally[9] - however this only extended to England, Scotland, and Wales. Northern Ireland had its own parliament at this time, which chose to ignore the issue altogether[10], with OAPA 1861 sections 58 and 59 remaining law in NI until over fifty years later.
1972: Northern Ireland (Temporary Provisions) Act 1972– Perhaps more commonly referred to as direct rule, this act signified the return to government from Westminster following the collapse of the Northern Ireland Parliament. In the years following, Westminster did not seek to extend the Abortion Act to Northern Ireland, given the ‘longstanding consensus of the dominant political parties against abortion’[11]. In the context of overarching violence and uncertainly (coupled with scarce political will for any sort of meaningful law reform) over the following thirty years, there were little to no developments on abortion law in Northern Ireland. Successive Westminster governments maintained a stance of neutrality, deliberate procrastination and ‘carefully choreographed ignorance’[12].
However, from the mid-1990s onward, greater clarification was sought on the exact circumstances in which abortions may occur, and in 2003 the first of a series of judicial review applications were made relating to the abortion laws in NI:
1994: Northern Ireland Health and Social Services Board v A and Others[13]: In this case, the Bourne mitigation - ‘life of the mother’ - was subject to further interpretation. Lord Justice MacDermott held that 'for the purpose only of preserving the life of the mother' did not only relate to situations where the life of the mother is threatened. He went on to state that ‘Life in this context means that physical or mental health or well-being of the mother[14], (later clarified that the ‘adverse effect must be permanent or long term and cannot be short term’[15]) broadening the grounds under which an abortion could be performed.
2003: In the Matter of an Application by the Family Planning Association of Northern Ireland for Judicial Review[16]: The FPANI sought a declaration from the High Court that the health minister has acted unlawfully in failing to provide advice and guidance to women in Northern Ireland on the availability and provision of services for the termination of pregnancy[17]. This action was initially unsuccessful in the high court; however, the Northern Ireland Court of Appeal allowed the FPANI to appeal[18] (see below).
2004 - Family Planning Association of Northern Ireland v Minister for Health, Social Services and Public Safety[19]: On appeal from the High Court, Lord Justice Nicholson further clarified the circumstances where an abortion may be permissible: "it is unlawful to procure a miscarriage where the foetus is abnormal but viable, unless there is a risk that the mother may die or is likely to suffer long-term harm, which is serious, to her physical or mental health"[20]. Additionally, the Court of Appeal also imposed a duty on the Department of Health to provide guidance to medical professionals stating the law in relation to abortion[21], however draft guidance was not published until July 2008, with formal guidance following a year later.
2009: Society for the Protection of Unborn Children, Re Judicial Review[22]: Following its publication by the Department of Health, the Society for the Protection of Unborn Children successfully challenged the aforementioned guidance at judicial review[23] on the basis that:
- Provision for conscientious objection was unclear[24].
- The requirement for the provision of non-directive counselling to women considering abortion, which could include the option of procuring abortion elsewhere, who did not meet the requirements for an abortion in Northern Ireland, was ‘arguably unlawful’[25].
However, their other grounds for judicial review were rejected. The provisions of the 2009 Guidance were withdrawn, with the entire document being withdrawn a year later. A revised draft was published in 2013, with formal guidance arriving three years later. A full thirteen years after the initial case brought by FPANI.
2010: Northern Ireland Act 1998 (Amendment of Schedule 3): while perhaps not directly related to abortion, this Order devolved policing and justice powers (and thus abortion) to Northern Ireland in 2010[26].
2015: The Northern Ireland Human Rights Commission's Application[27]: under the Human Rights Act 1998, Lord Justice Horner declared in the high court that the abortion law in Northern Ireland was inconsistent with Article 8 of the European Convention on Human Rights (the right to respect for private and family life).
2017: Attorney General for Northern Ireland & The Department for Justice v The Northern Ireland Human Rights Commission[28]: In the Court of Appeal, the declaration of incompatibility made by the High Court was quashed, with the court holding that the state must be given a ‘broad margin of appreciation’ and that a ‘fair balance’ had already been struck by the law as it stood[29].
2018: Re an application by the NIHRC for Judicial Review (NI)[30]: the Supreme Court held that Northern Ireland’s abortion laws were indeed incompatible with Article 8 by prohibiting abortion in cases of rape, incest, and fatal foetal abnormality. However, it did not restore the declaration of incompatibility quashed by the Court of Appeal.
2019 - Northern Ireland (Executive Formation etc) Act 2019 (“the 2019 Act”): This act radically overhauled abortion law in Northern Ireland, due in part to the collapse and subsequent suspension of Stormont from January 2017 until January 2020. In June 2019, statistics were released that more than 1,000 women and girls had travelled from Northern Ireland to England and Wales for abortions in 2018 alone[31]. The following month on July 24th, the 2019 Act made provisions that had the Northern Ireland Executive had not been restored by October 21st that year, the Secretary of State would be required to ‘ensure that the recommendations in paragraphs 85 and 86 of the CEDAW report were implemented in respect of Northern Ireland’[32], with the effect of commissioning abortion services. This act also decriminalised abortion by repealing sections 58 and 59 of the OAPA 1861[33].
2020 – The Abortion (Northern Ireland) Regulations[34] were put before the Assembly on 25th March. On the same day, the publication of the changes to abortion laws in Northern Ireland were announced:
- ‘Access to abortions without conditionality up to 12 weeks gestation’[35]
- Abortions beyond 12 weeks gestation in the cases involving ‘risk of injury to the physical or mental health of the pregnant woman or girl […] severe fetal impairment and fatal fetal abnormalities […] where there is a risk to the life of the woman or girl’[36]
March 2021: Abortion (Northern Ireland) Regulations 2021: the UK government set out these regulations to ‘address the gaps in commissioning abortion services in Northern Ireland’[37], giving the NI Secretary of State, Brandon Lewis, further powers to direct the NI government to implement greater access to abortion services.
July 2021: The Abortion Services Directions 2021: The Secretary of State for Northern Ireland, Brandon Lewis, issued a direction to the Department of Health and the First and Deputy First Ministers, to commission abortion services available in Northern Ireland as soon as possible – by March 31st, 2022, at the latest[38]. The aforementioned 2021 Regulations, and this direction are now ‘subject to a judicial review, brought by the Society for the Protection of Unborn Children’[39]. The case was heard at Belfast High Court in early October 2021 and judgement has been reserved[40].
October 2021: The Northern Ireland Human Rights Commission (abortion services)[41] : The NIHRC brought legal action against the Secretary of State for Northern Ireland on behalf of a woman told to travel to England for an abortion during the COVID-19 pandemic lockdown[42]. The action was brought on the basis that he had failed to ensure ‘women are provided with abortion and post abortion care in public health facilities in Northern Ireland’[43]. In October, the High Court ruled that the Secretary of State had failed to comply with his duties under section 9 of the 2019 Act[44]. However, in this instance the court did not make any compelling order for the Secretary of State to provide a timeline for the provision of services[45].
Conclusion
As this article indicates, the road to the current state of the law, has been a long, drawn-out, tumultuous process. At the time of writing the law permits abortion on demand for the first 12 weeks of pregnancy, however there is no time limit in situations involving rape, incest, fatal fetal abnormality, or risk of injury to the woman’s mental or physical health[46].
The state of the abortion law in Northern Ireland is in flux. As discussed, in the latter half of 2021, two judicial reviews were sought. One, brought by the NIHRC, sought to rectify the failure of the Secretary of State to ensure abortion care in public health facilities in NI. The other, brought by SPUC is claiming that he has gone beyond his powers by issuing the directive in July 2021. While these cases may be draped in the flag of human rights or accountability of government, they boil down to the clashing of ingrained ideologies so prevalent in this jurisdiction.
As to which will prevail in their campaign, only time will tell.
Sources Cited:
[1] Offences Against the Person Act 1861. [2] Fiona Bloomer, Eileen Fagan, ‘Critiquing recent abortion law and policy in Northern Ireland’ (2014) 34 Critical Social Policy 109. [3] Ibid. [4] [1938] 3 All ER 615. [5] Bloomer (n 2). [6] Bloomer (n 2). [7] Government of Ireland Act 1920, section 4(1). [8] Criminal Justice Act (Northern Ireland) 1945, section 25. [9] Bloomer (n 2). [10] Bloomer (n 2). [11] Bloomer (n 2). [12] Sally Sheldon, Jane O’Neill, Clare Parker, Gayle Davis, ‘‘Too Much, too Indigestible, too Fast’? The Decades of Struggle for Abortion Law Reform in Northern Ireland’ (2020) 83 MLR 761 [13] [1994] NIJB 1. [14] Ibid. [15] Western Health and Social Services Board v CMB (Unreported), High Court (Family Division), 29 September 1995. [16] [2003] NIQB 48. [17] Catherine O’Rourke, ‘Advocating Abortion Rights in Northern Ireland: Local and Global Tensions’ (2016) 25 Social and Legal Studies 716. [18] Ibid. [19] [2004] NICA 376. [20] Ibid. [21] O’Rourke (n 17). [22] [2009] NIQB 92. [23] O’Rourke (n 17). [24] [2009] NIQB 92, [44] [25] [2009] NIQB 92, [44]. [26] Northern Ireland Act 1998 (Amendment of Schedule 3) Order 10, Explanatory Note. [27] [2015] NIHC 96 (QB). [28] [2017] NICA 42. [29] Ibid. [30] [2018] UKSC 27. [31] ‘Timeline: Abortion campaign has gone on for decades’ (Irish News, 9 October 2019) <www.irishnews.com/news/2019/10/09/news/timeline-of-a-decades-long-campaign-1733967> accessed 27 October 2021. [32] Northern Ireland (Executive Formation etc.) Act 2019, section 9 (1). [33] Northern Ireland (Executive Formation etc.) Act 2019, section 9 (2). [34] The Abortion (Northern Ireland) Regulations 2020. [35] Northern Ireland Office, ‘Changes to the law in Northern Ireland’ (UK Government 25 March 2020) <www.gov.uk/government/news/changes-to-the-law-in-northern-ireland-updated-information> accessed 28 October 2020. [36] Ibid. [37] Elizabeth Rough ‘Abortion in Northern Ireland: recent changes to the legal framework’ (Commons Library, 26 October 2020) <https://commonslibrary.parliament.uk/research-briefings/cbp-8909/> accessed 27th October 2021. [38] Ibid. [39] Rough (n 37). [40] Rough (n 37). [41] [2021] NIQB 91. [42] Alexandra Topping, ‘Northern Ireland secretary failed to comply with abortion duty, judge rules’ (The Guardian, 14 October 2021) <https://www.theguardian.com/uk-news/2021/oct/14/northern-ireland-secretary-failed-comply-abortion-duty-judge-rules> accessed 29 October 2021. [43] Rough (n 37). [44] [2021] NIQB 91, [112]. [45] Topping (n 42). [46] UK Government, ‘A new legal framework for abortion services in Northern Ireland’, (HM Government, March 2020) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/875380/FINAL_Government_response_-_Northern_Ireland_abortion_framework.pdf> accessed 28th October 2021.