As the 22nd October 2019 approaches it looks increasingly certain that abortion will be decriminalised with the repeal of sections 58 and 59 of the Offences Against the Persons Act in Northern Ireland. This is the first important step towards fulfilling the recommendations of the United Nations CEDAW committee for a human rights compliant system of reproductive healthcare.
Decriminalisation by itself won’t deliver services however, and as of the October deadline, the Northern Ireland Office will have 5 months to consult on a regulatory framework and service delivery plan.
The time between decriminalisation and the implementation of regulations and services has generated questions about what could take place in the interim period. Those who are against any kind of change in the law have said that decriminalisation is something dangerous. There are also some members of the public who do favour choice for women to some degree but have concerns about what will happen in the coming months.
In order to reassure people,it’s important to start with a clear explanation of what decriminalisation of abortion actually is and why it is favoured by the United Nations, the World Health Organisation and all the medical professional and regulatory bodies in the UK.
Essentially decriminalisation is about removing the concept in law that says abortion in and of itself is a criminal act. This makes bad law. It creates a chill factor for medical practitioners who are scared of getting it wrong. It perpetuates the stigma that accompanies abortion and it isn’t the right way to deal with an issue that is so integral to the health of women and pregnant people.
Decriminalisation allows law makers to build abortion law from a healthcare starting point, developing a system of regulation that includes time limits for abortions, medical criteria that must be met for abortions at various gestations, rules about which medical practitioners are allowed to carry out abortions and in which types of setting, and any other considerations necessary to provide safe, legal and accessible services. By the end of March we should have abortion services in Northern Ireland. They will be highly regulated like any other medical procedure and there will be clear limits set as to which abortions will be lawful and unlawful. Abortions that are considered unlawful could lead to prosecution as would be the case with any medical procedure undertaken outside of what is permitted by regulations and codes of practice. To make a simple comparison, it would be unlawful for a surgeon to remove my appendix without first satisfying the conditions set out in the regulation of this procedure. Appendectomies don’t need to first be a criminal offence in order to enforce regulated medical practice.
We all want to see the establishment of statutory services and clear reproductive health policy, law and regulation that satisfies the conditions set out by the United Nations that the UK government are now bound in law to deliver on. The consultation period must allow a range of stakeholders to have their say in how to deliver abortion services in Northern Ireland. It’s an opportunity for all of us to help shape that, especially those of us who have had abortions and healthcare professionals with years of experience of supporting the women and pregnant people who have been put in very difficult circumstances by our archaic law. In the meantime we must put paid to the sense that nothing will be in place to prevent any kind of abortion in any circumstance and any gestational stage. This is not true. Some key pieces of law will still be in place after October 22nd such as the Infant Life Preservation Act 1929 that will continue to place an upper time limit on abortions. Healthcare professionals will continue to be bound by the code of practice specific to clinical guidance and in line with regulation.
The National Institute for Health and Care Excellence (NICE) will soon be launching new guidance on abortion care which will be crucial in shaping practice here as well as across the UK. However, in such rapidly changing circumstances it remains to be seen if any statutory service providers would feel that they had enough clarity to offer abortion services until the full regulatory framework for Northern Ireland has been established and agreed. What decriminalisation will bring though is the freedom for doctors, midwives and sexual health workers to talk openly about abortion services that are available elsewhere in the UK, provide information without the fear of prosecution. It will also protect them in providing aftercare, including counselling services, to anyone who has had an abortion without the current ‘don’t ask don’t tell’ approach that has been putting those with post-abortion complications at risk.
As someone who has spent the last few years listening to people who have procured their own abortions through the use of safe but illegal abortion pills, it is a huge relief to know that no one will face prosecution. That the courageous mother who stood up to the authorities and challenged the decision to prosecute her for obtaining abortion pills for her then 15 year old daughter will finally be free to get on with her life. That the women I know who have had experience of taking the pills and those family, friends and partners who have supported them can finally speak openly about that experience as it will be an important part of understanding how badly we have been failing women and pregnant people. And that anyone who finds themselves in a crisis pregnancy whose health, life or wellbeing might depend on taking abortion pills they should be able to do so without the threat of imprisonment.
While we will all look forward to getting services in place after the end of March we have to be realistic that as many as 40 women and pregnant people might need an abortion each week that passes during that time and we celebrate the fact that no matter how they are able to access it, they will no longer be treated as criminals.
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