The Supreme Court says Northern Ireland is violating women’s human rights – but won’t overturn its abortion law. Confused? Here’s everything you need to know about a very complex issue.
Since the Republic of Ireland voted in a landslide to legalise abortion in the referendum on 25 May, attention has turned to women’s reproductive rights in Northern Ireland. Although it is part of the UK, rules around abortion in Northern Ireland are much stricter than those in England, Scotland and Wales, and are almost identical to the law just overturned in Ireland. Women in Northern Ireland are banned from having terminations even in cases of rape, incest or fatal foetal abnormalities, and are only allowed if doctors believe their mental or physical health would be seriously or permanently harmed by continuing with a pregnancy.
Technically, women elsewhere in the UK also have to convince doctors that their mental or physical health would be endangered by having a baby. However, this law is interpreted much more liberally than in Northern Ireland. More than 190,400 abortions were carried out in England and Wales in 2016, over 99% of which were reported as being performed because of a risk to the woman’s mental health.
In Northern Ireland, in contrast, just 13 terminations took place in 2016/17. As a result, increasing numbers of women leave the country to seek abortions; more than 900 women travelled from Northern Ireland to England for the procedure in 2017, according to UK Department of Health figures, the highest level since 2011.
There have also been several instances in recent years of women being prosecuted for procuring or taking illegal abortion pills – a crime that carries a sentence of life in prison.
On 7 June, the UK Supreme Court dismissed a bid brought by the Northern Ireland Human Rights Commission (NIHRC) to overturn the country’s abortion law, saying that the commission did not have the authority necessary to bring the case.
However, a majority of Supreme Court judges also said that Northern Ireland’s current abortion law is in breach of women’s human rights under the European Convention on Human Rights – meaning the UK government is violating its own commitments by not enabling access to abortion in Northern Ireland.
This part of the ruling may force the government to legislate on the matter from Westminster, something it has so far been reluctant to do.
The political questions surrounding the debate are sensitive and complex, but they’re worth understanding in full. Here’s an explainer of all the key issues.
Why is Northern Ireland’s abortion law so different to the rest of the UK’s?
Abortion is technically a criminal offence across the UK under a Victorian-era law called the Offences Against the Person Act 1861. The act states that any woman who attempts to “procure her own miscarriage” is liable to be “kept in penal servitude for life”, while anyone who supplies or procures the tools or medication necessary for abortion can also be imprisoned.
More than a century after that law was passed, women in England, Scotland and Wales were given the right to abortion up to 24 weeks under the Abortion Act 1967.
However, the government at Westminster never tried to extend the Abortion Act to deeply religious Northern Ireland. This was partly due to fears that any attempt to enforce the legalisation of abortion would cause disruption in an extremely volatile political climate. Politicians also believed that many Northern Irish medics would refuse to perform terminations on moral grounds.
In 1998, 30 years of violence in Northern Ireland – known as the Troubles – were brought to an end by the Good Friday Agreement, a treaty which formally recognised Northern Ireland as part of the UK. However, it also established that the country would be run by its own devolved government, the Northern Ireland Assembly, without any interference from Westminster – and that’s how things have worked ever since.
Who has been pushing Northern Ireland to change its abortion legislation?
Many women in Northern Ireland, for starters. Groups such as Alliance for Choice and the Abortion Rights Campaign have been working on this issue for years, and their campaign has been given renewed energy thanks to the results of the Irish referendum.
The Northern Ireland Human Rights Commission brought its case before the UK Supreme Court in October 2017 with support from Amnesty International, arguing that the current abortion law is in breach of women’s human rights. The Belfast High Court had previously ruled that the law was a human rights violation, but that ruling was overturned by the Belfast Court of Appeal in June 2017.
In the aftermath of the Irish abortion referendum results, MPs from all sides of the political spectrum began asking the government to intervene to relax Northern Ireland’s abortion law. A cross-party group of around 160 MPs backed a letter by Labour MP Stella Creasy in which she called for a vote on the subject, which she wanted to instigate by tabling an amendment to the upcoming Domestic Abuse Bill.
At an emergency Commons debate called by Creasy on 5 June, MPs called for Northern Ireland’s abortion law to be modernised. Penny Mordaunt, the Conservative minister for women and equalities, said that the House of Commons had sent a message to Northern Irish politicians that if they do not act on the subject, “we will”.
In response to the debate, Northern Ireland secretary Karen Bradley said that she and the Prime Minister both supported abortion reform, but argued that the matter was up to politicians in Northern Ireland to decide.
Why are some politicians in Westminster so reluctant to get involved in Northern Irish politics?
This is where things get a little more complicated. The government’s official line, per Bradley, was that “the people of Northern Ireland [should] have their say on the devolved issues which affect their daily lives”.
However, there was also the not-insignificant matter that May’s government is currently being propped up by Northern Ireland’s Democratic Unionist Party (DUP), which has long opposed abortion reform. Some believe this influenced May’s reluctance to force the DUP’s hand.
The DUP’s leader, Arlene Foster, has doubled down on her party’s anti-choice stance since the Irish referendum, even claiming that some voters are defecting to the unionists from Sinn Fein – their fiercest opposition party – as a result of Sinn Fein’s pro-choice policies.
If politicians in Northern Ireland should be deciding this issue, why hasn’t that happened already?
Well spotted. Politicians in Northern Ireland are responsible for their own policy decisions, but there hasn’t actually been a fully functioning devolved Northern Irish government for almost a year and a half.
In January 2017, Sinn Fein withdrew from a coalition government with the DUP, saying it was not being treated as an equal partner. This would make it impossible for the DUP to change Northern Ireland’s abortion law, even if it wanted to.
Why couldn’t the Supreme Court overturn the law?
After dismissing the case brought by the Northern Ireland Human Rights Commission, Supreme Court judges explained that it needed to be brought by a woman who was pregnant as a result of sexual crime or who was carrying a foetus with a fatal abnormality to be legally valid.
Sarah Ewart, a Northern Irish woman who was forced to travel to elsewhere in the UK for an abortion after being told her baby would not survive, will now take the case back to the Belfast High Court to seek a formal declaration that the law is incompatible with European human rights laws.
“I’m not only doing this for me, but for every woman who may find themselves in my situation,” said Ewart. “We will not accept being forced on planes to access healthcare. What we need is compassion and services in Northern Ireland.”
What is likely to happen now?
As the Supreme Court was not able to force a law change, the issue has now been returned to the hands of politicians in Westminster and Belfast.
Many MPs have argued that the government can change Northern Ireland’s abortion law without intervening directly in the country’s policies. They believe this could be done by repealing sections 58 and 59 of the 1861 Offences Against the Person Act – which still technically apply to the whole of the UK – as part of the government’s forthcoming Domestic Violence Bill.
“Far from overriding devolution, removing this archaic legislation from the statute creates the direct opportunity for each nation to update its abortion laws for the 21st century and so respects the devolutionary process,” wrote MPs including Stella Creasy, Caroline Lucas, Sarah Wollaston, Jo Swinson and Liz Saville Roberts in a letter.
A crossbench group of more than 30 MPs was expected to write to Home Secretary Sajid Javid on Monday 11 June, demanding that he bring the Domestic Abuse Bill before parliament by the autumn. This would enable pro-choice MPs to table an amendment, allowing parliament to vote on whether to repeal sections 58 and 59 of the 1861 Act.
Creasy told The Guardian that the government needed to give a date and set out a timetable for when the Domestic Abuse Bill would be brought before parliament.
“It is clear there’s a majority across parliament who want to see this legislation which criminalises women who seek an abortion repealed, yet without this legislation being brought forward to parliament, an amendment can’t be tabled,” she said.
We’ll keep you updated on developments as they happen.
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