Choice Ireland

At last the legal fog on abortions is lifted
New guidelines that clarify law on abortion in Northern Ireland will actually make it easier for women to get a termination
Liam Clarke

Don’t believe the political spin – abortion has just become a lot easier in Northern Ireland. Depending on how medical professionals implement new guidelines, it may even be easier to get a National Health Service abortion right up to full term than it is in England.

The guidelines, issued last week, have implications north and south. They make it clear that the ban on abortion in Northern Ireland is little more than a paper tiger. It may look fierce, but it has no teeth.

The document, Guidance on the Termination of Pregnancy: The Law and Clinical Practice in Northern Ireland, was slipped out without any official press release on Friday morning. It passed through the Stormont power-sharing executive after months of delay and despite DUP opposition. Jeffrey Donaldson, a DUP junior minister, confirmed that “our ministers voted against the guidelines at the executive”.

Both Donaldson, whose opposition to legalised abortion is ethically based, and the DUP were right to be worried that their strong anti-abortion stance had been undermined. They have fought for years to stop Britain’s 1967 Abortion Act being extended to Northern Ireland, but having won that battle they may now have lost the war.

“We will not be liberalising the law on abortion here,” Donaldson added, and indeed it is true that the new guidelines only make clear what is and is not permitted. They do not alter the position that abortion is illegal in Northern Ireland, except when the mother’s life is at risk. But the devil is in the detail, and I believe the result of the clarity will be more terminations taking place locally.

Each week, an average of more than 40 women travel to England from Northern Ireland for abortions in private clinics at a cost of about £2,000. Now at least some of these women won’t have to travel, and some who can’t afford to will be able to get free terminations in local clinics. Up to 10,000 women who have abortions in England each year come from the republic; some may be able to get the procedure in the north too.

Abortion in Northern Ireland is governed by the 1861 Offences Against the Person Act. It sets a penalty of “hard labour” for anyone who attempts to “procure a miscarriage” even if the woman turns out not to be pregnant. The law was drawn up before there were reliable tests for pregnancy; the message was “don’t even think about abortion or you’ll end up in jail”.

The reality is different: 80 or 90 abortions are carried out in Northern Ireland each year and the Family Planning Association alone deals with about 40 more every week by referring women to clinics in England. Still more women procure “do-it-yourself abortions” by ordering pills from Dutch websites.

So abortions are common, but there is not a single relevant case in which a Northern Ireland court has either found anyone guilty of procuring a miscarriage, or denied an abortion when it was applied for. A legal appendix to the guidelines lists just six cases, going back to 1993, for the guidance of doctors. Each time the issue was put before the courts, the judiciary interpreted the grounds on which a termination could be authorised in a way that avoided any clash with the medical profession.

In 1993 an abortion was allowed on the basis that a pregnant minor had threatened to commit suicide if she gave birth. The judge accepted medical opinion that she would be “a physical and mental wreck”. A year later another abortion was allowed because the threat to a prospective mother’s mental or physical health (not necessarily both) would be “real and serious”.

In 1995 two more abortions were permitted, one for a mentally handicapped woman who was a ward of court and another for a 16-year-old whose doctors said she had threatened suicide. It is probably common for women with crisis pregnancies to consider or mention suicide. Once that possibility enters the equation, few doctors could be confident that no real danger existed.

So the 1861 act has been neutered and in 2004 the Court of Appeal ordered the Department of Health to issue guidelines setting out the law as it now stood for the benefit of health workers. In the same year Justice Kerr ruled that a doctor need not seek a second opinion, as is required in England, if he believed an abortion was required for the sake of a mother’s mental health.

In some ways the 1967 act, which only applies on the British mainland and is opposed by all the main northern parties, is more restrictive than Northern Ireland’s case law. British law says that “two registered medical practitioners” must believe 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” before the 24th week of pregnancy. This is arguably a stiffer test than one doctor finding “real and serious risk” of physical or mental damage up to full term. Terminations are permitted on the mainland after 24 weeks only to prevent “grave permanent injury” to the woman or “risk to her life”.

The guidelines passed by the Stormont executive specify that “the legal justification for carrying out a termination of pregnancy in Northern Ireland is exactly the same both before and after a child is capable of being born alive”.

In theory, abortions for foetal abnormalities are forbidden in Northern Ireland. In practice, they are the most common kind and women have been asked to sign a consent form to abortion before some tests for abnormalities such as spina bifida are carried out.

Until now the anti-abortion lobby has, wisely, stalled the process of issuing guidelines so as to maintain the theoretical ban. A process of smoke and mirrors has allowed considerable confusion. One survey of doctors found that some thought abortion was illegal, others thought it was permitted for foetal abnormality and still more believed it could be used to end pregnancies caused by rape or incest.

All these views were wrong, but they formed the basis on which doctors were prepared to authorise or refuse terminations. Was it any wonder that many women facing crisis pregnancies preferred to go to England or to order a pill on the internet?

The guidelines do end the fudge and confusion and Michael McGimpsey, the health minister, is to be congratulated for clearly setting out the law. They recognise that having an abortion is a grave and serious decision. They recommend non-directive counselling in which all options, including adoption, are explained. They stipulate that a woman should be supported and counselled after a termination, however and wherever it is obtained.

Other sensible provisions give medical staff a right to opt out of carrying out abortions on grounds of conscience except where a woman’s life “is in immediate danger and emergency action needs to be taken”. But staff cannot opt out of general care for women before and after the procedure.

A doctor who objects to abortion on ethical grounds is advised to explain this to the patient in a non-judgmental way. The GP should refer the patient to another practitioner who is willing to apply the legal tests. Refusing an abortion and sending the woman away is not acceptable.

This strikes a sensible balance between allowing freedom of conscience to medical staff and meeting the needs of the patient within the law. But it drives a coach and four through the “ban” on abortion. From now on it should be possible for any woman in Northern Ireland who is determined to have a termination to obtain one locally, once the alternatives have been explained to her. Politicians who want to reduce the abortion rate will have to focus on improving the alternatives.