Recently elected DUP MP Emma Little-Pengelly had a go at setting out the facts on abortion law in Northern Ireland. She is a qualified barrister and has years of experience in the Office of the First and deputy First Minister, first as a Special Adviser and then as Junior Minister of the same office, recently renamed as the ‘Executive Office’.
While Little-Pengelly’s summary is not inaccurate, in terms of the wording of the legislation and case law, it does not reflect the true picture of the lack of abortion access in Northern Ireland. Let’s go through each of her statements in turn.
‘There is legal abortion in Northern Ireland’
This is true. How many legal abortions? Just 16 NHS abortions were carried out in 2015-2016. Marie Stopes International also operate a clinic in Belfast, offering medical abortions which are only available under 9 weeks, within the strict legal framework. It is unknown how many people access legal private abortion at Marie Stopes; each one of them will have walked through an assembly of ‘protesters’ on their way to the clinic. Meanwhile on average 1000 women a year travel to England for private abortion healthcare, and around 400 use safe but illegal pills from Women on Web. These figures are estimates only. Unknown numbers travel to other countries such as The Netherlands, or do desperate and dangerous things to end a pregnancy.
‘This includes ground on the health & risk of life to the mother’
Again technically yes. An abortion may be lawfully performed if there is a risk to the life of the pregnant person. In terms of risk to health, it must be a serious long term or permanent risk to the mental or physical health of the pregnant person. Under the words of the 1938 Bourne judgement abortion may be allowed if continuing with the pregnancy would leave the pregnant person a ‘mental or physical wreck’. We are not talking about simply a ‘risk to health’ as suggested by Little-Pengelly, it must be something that would be devastating. I remind you, only 16 women met this standard in 2015/16. Women carrying a pregnancy where there is a fatal foetal anomaly have given accounts of how their distressing situations still did not satisfy the high bar set by these requirements.
‘It is the ‘social grounds’ introduced in the 1967 Act that do not apply in Northern Ireland’
The 1967 Abortion Act does not apply in Northern Ireland, this is true. So just what are those ‘social grounds’ Emma refers to? Up to 24 weeks reasons include a risk to the life or health of the pregnant person or their existing children, where there is a risk of the foetus having a substantial disability, and socio-economic reasons i.e. not being able to afford to have a child. After 24 weeks reasons include grave risk to the life of the pregnant person, a grave risk of mental or physical injury to the pregnant person, or if there is a severe foetal anomaly.
‘Legal abortion in most of the UK in governed by the 1967 Act’
Yep, nail on the head, that is the current law in most of the UK.
‘This does not allow abortion on the basis of ‘choice’- only on specified grounds’
I’ve already outlined the reasons an abortion may be granted under the 1967 act above. Under the terms of the act, two doctors must agree that the terms of the act are met. So yes, Little-Pengelly is correct, people across the UK don’t really have ‘choice’ as they have to convince two doctors that they meet one of the reasons in the 1967 Act. In practice the 1967 Act have been applied liberally. However any abortion that does not meet the stipulations is a criminal act under the 1861 Offences Against the Person Act, the main law in Northern Ireland.
That is why the #wetrustwomen campaign has been lobbying for the full decriminalisation of abortion across the UK, because the 1967 Act is not fit for purpose and restricts choice. Indeed Alliance for Choice is not campaigning for the extension of the 1967 Act, but for full decriminalisation. Just before Parliament was dissolved a Bill to decriminalise abortion in England and Wales passed the first stage.
‘Almost no country in the world has unlimited legal abortion, the argument lies in what the limits are’
Several countries have full decriminalisation of abortion, including Canada and parts of Australia. The current law in Northern Ireland is one of the most restrictive in Europe. So let’s revisit the limits in Northern Ireland - No abortion unless the pregnancy is going to kill you or leave you a ‘mental or physical wreck’.
We’ve been through what Emma’s tweet said, but what about the things it didn’t cover? One glaring omission from Little-Pengelly’s handy summary is that there is no NHS referral pathway for women in Northern Ireland. So for the 1000 women a year who travel to England for safe and legal abortion they must pay for it out if their own pocket. Surprisingly, this inequality experienced by the British citizens in that 1000 women doesn’t feature in the DUP discourse around abortion. Of course, many cannot afford the thousands of pounds it can cost to travel and pay for private treatment, the Abortion Support Network is a charity that can help with that.
Another thing that isn’t mentioned is that anyone who procures their own abortion, or helps someone to, faces up to life in prison. This is a law that is being increasingly acted upon. Over the past year or so we have seen one woman given a suspended sentence, a man and a woman given a caution and a criminal record, and another woman charged for helping her teenage daughter have an abortion. There have also been a number of raids of homes and work place looking for abortion pills and instruments used to carry out abortion. On International Women’s Day 2017, while hundreds were attending a pro-choice rally at Belfast City Hall, the police were raiding an activist’s workshop. Not one of these raids has resulted in further action by the police.
Emma Little-Pengelly’s party, the DUP, has opposed even limited abortion reform in Northern Ireland. Even though there is a court ruling saying that the current legislation is in violation of Article 8 of the European Convention on Human Rights. Limited reform to allow abortion in the cases of pregnancy resulting from rape or incest, or a pregnancy with a fatal foetal anomaly has been tabled several times in the Northern Ireland Assembly. In February 2016 Little-Pengelly herself spoke against proposed legislative reform in these two areas, but in support of a working group, saying "The way forward that we are proposing is a compassionate one, it is a sensible one, it is a common sense one that will leave all of us in a much better and informed position to chart a loving and kind way forward.". In the Northern Ireland Assembly the DUP is not alone in their desire to restrict women’s bodily autonomy. The SDLP and TUV also oppose any change. Sinn Fein only support the limited reasons for reform outlined above. The UUP and Alliance Party have a conscience vote on the matter with elected reprehensive across the whole spectrum from no change to full decriminalisation. The Green Party and People Before Profit support decriminalisation.
While the points made by Emma Little-Pengelly in her tweet are strictly accurate, in a text book way of interpreting the law, they do not reflect reality. The ‘factual summary’ glosses over the huge barriers to abortion access experience in Northern Ireland, and omits the ongoing criminalisation of women. The guidelines which have had a ‘chilling effect’ on the medical profession, meaning circumstances which previously would have satisfied the requirements are now deemed not to, are ignored. These guidelines can only interpret the existing law, and this interpretation is not consistent across health trusts resulting in an uncertainty as to whether someone will even get the treatment that they need. This misrepresentation of the application of the law is even more disappointing knowing it is coming from a lawyer and politician who knows exactly what she is doing. The fact is, most people who need an abortion in Northern Ireland are unable to get one that is free, safe, legal, and local. That needs to change.
About the author:
Danielle Roberts received her LLB Law and Politics from QUB in 2007 and qualified as a solicitor in 2009. Danielle is currently completing a PhD on barriers to women's political participation. You can find her on twitter @DanirNI.