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Abortion laws in the north Politicians, prosecutors and the punishment of women At the end of March the US presidential contender Donald Trump provoked widespread outrage for his comment that - if the procedure were outlawed by the Supreme Court- there should be “some form of punishment” for women who undergo an abortion. This comment, which was just the latest in a series of ant-women statements by Trump, was rightly condemned. However, it should be noted that it was made in response to the hypothetical scenario of an outright ban on abortion across the US. Contrast this with the real life scenario which played out just a week later at the Crown Court in Belfast when a 21 year old woman from Co Down was given a three month suspended sentence for procuring and taking pills to induce an abortion in the early stages of pregnancy. In the north of Ireland women are being punished for having an abortion. Conviction Despite Britain and Northern Ireland being part of the same state the same laws in relation to abortion do not apply. The Abortion Act, passed by the British parliament in 1967, was never extended to Northern Ireland. The 1861 Offences Against the Person Act is still in force and it was under its provisions that the prosecution against the women was taken. In the arcane language of the Act she was accused of supplying and using a “poison with the intent of procuring a miscarriage.” This is despite the fact that the drug combination (Mifepristone and Misoprostol) used by the woman is recognised by the World Health Organisation as one of the safest methods to end an early pregnancy. The charge brought against her by the Public Prosecution Service (PPS) carried a maximum sentence of life imprisonment – the same as that for a murder conviction. The woman’s barrister told that court that if his client had lived anywhere else in the UK she would “not have found herself before the courts”. He also highlighted the circumstances in which she made the decision to purchase abortive drugs – her limited financial means which ruled out the option of travelling to Britain for a procedure and her feelings of “being isolated and trapped . . . with no one to talk to”. Such arguments did not prevent the women receiving a custodial sentence, albeit suspended for year. The PPS defended its decision to prosecute on the basis that it was in the “public interest”. However, given the long history of non-prosecutions and collapsed trials within the northern judicial system – usually relating to revelations of state involvement in crimes – this justification is risible. It is also notable that the PPS choose to prosecute a young woman who was in a very vulnerable position. All of this creates the impression of a prosecution designed not only to clampdown on the growing use of abortive drugs but also to create a climate of fear around the issue of abortion. Restrictions The attempts to instil fear in people, whether they are women facing an unwanted pregnancy or the medical staff that may deal with such women, have really come to the fore in the recent period. While the law in Northern Ireland has always been restrictive when it comes to abortion – only allowing for termination if there was a serious risk to a woman’s life or long term threat to her physical or mental health – the guidelines under which medical staff operated allowed for a degree of discretion and a more liberal application of the law. For example, under these guidelines women who received a diagnosis of fatal foetal abnormality would have the option of a termination rather than suffer the trauma of a stillbirth or giving birth to a baby that would only live for hours or days. However, since the restoration of the Assembly, and particularly since the DUP took control of the Dept of Health, the scope for such discretion has been eliminated. This was signalled most dramatically in 2013 when the DUP health minister Edwin Poots issued new abortion guidelines for medical staff which ruled out any automatic exception for fatal foetal abnormalities. The guidance was also accompanied by serious legal threats of up to life imprisonment hanging over practitioners giving advice. Though these guidelines were later withdrawn they have had a chilling effect on medical staff who found themselves operating in what has been described as a “climate of fear”. According to Breedagh Hughes, director for Northern Ireland at the Royal College of Midwives: “women are not getting the care that they really need because of the fear and confusion on the part of the healthcare team looking after them.” What has proved particularly difficult - due to the pressure to report anyone who has illegally procured an abortion - is when women who are having a miscarriage after taking abortion pills bought online come seek advice. This scenario is very similar the one which resulted in the recent court case. All this has had a drastic effect on the number of abortions being carried out within the Northern Ireland health service with the annual rate falling from around fifty to just over twenty (this compares to more than 200,000 in the rest of the UK). The consequences of the more restrictive regime has been highlighted by cases such as that of Lisburn woman Sarah Ewart who had to travel to England for a termination after receiving a diagnosis of “fatal foetal abnormality”. Such restrictive regulations do not just cover the health service they also cover private providers. Indeed, one of the main targets of the anti-abortionists in Stormont has been the Marie Stopes organisation which set up a clinic in Belfast in 2012. Though it was not accepted, a proposed amendment to the recent Justice Bill would have banned private clinics such as Marie Stopes from offering non-medical terminations for women pregnant up to nine weeks. Legal challenges The growing restrictions on abortion have not gone unchallenged. Such challenges have gone done the legal route with various individuals, organisations and even public bodies seeking judicial review of the law and regulations. The most notable of these has been the successful challenge of the Human Rights Commission to the law relating to abortion in the cases of fatal foetal abnormality and sexual crime. Last November the High Court in Belfast ruled that the almost blanket ban on terminations in Northern Ireland’s hospitals was incompatible with human rights law. In his ruling, referring to cases of rape, incest and fatal foetal abnormality, Justice Horner concluded that the “article 8 [of the convention] rights of women in Northern Ireland who are pregnant with fatal foetal abnormalities or who are pregnant as a result of sexual crime are breached by the impugned provisions.” In cases of fatal foetal abnormality, the judge concluded the mother's inability to access an abortion was a "gross interference with her personal autonomy". He also noted that the financial costs associated with travelling to Britain for an abortion meant that there was effectively one law for the rich and one law for the poor. While this ruling was clear it placed no compunction on politicians to change the law. So what is created is a situation in which the abortion issue is batted back and forth between the courts and the Executive. Assembly Despite being found to be in breach of human rights the Executive continues to resist any change. Two appeals to the judgement of the High Court were lunched. The attorney general for Northern Ireland, John Larkin – a vehement anti-abortion campaigner who once said that aborting a foetus with a fatal abnormality was like “putting a bullet in the back of [its] head … two days after it’s born” – appealed against the ruling. Also appealing the ruling was the Justice minister David Ford who raised concerns that a lack of "legal certainty" in relation to sexual crimes could lead to "abortion on demand". The clear inference here - and one that reveals a thoroughly contemptuous view of women - is that false rape claims will be made in order to obtain abortions. The reactionary character of the political institutions really came to the fore in February when amendments to the Justice Bill that would have brought the law into compliance with the High Court ruling were moved in the Assembly. In the event MLAs voted to keep abortion law exactly as it was. The amendment legalising abortion when there is a fatal foetal abnormality was defeated 59-40 while the one on sexual crime was lost 64-30. The scale of these defeats show both the engrained bigotry of Stormont and the degree to which it stretches across the community divide. Opposition to women’s rights goes well beyond the the DUP. Indeed, some of the most vociferous opposition to any change came from the SDLP with its MLAs voting unanimously against the amendments. One of its leading members made the astounding claim that there "there is no such definition" as fatal foetal abnormality. Another notable interventions in the debate came from TUV leader Jim Allister who called the rape amendment a “charter for abortion on demand”. He claimed that it was easy for a woman to cry rape: “All you have to do is to allege indecent assault it seems - rape - and you're entitled, on the nod, of a medical practitioner to abortion.” The intervention of the attorney general in the debate came through a letter in which he questioned whether abortion in the case of fatal foetal abnormality was a form of disability. This is despite the fact that neither the World Health Organisation nor any human rights body has characterised severe foetal impairment as a disability of the foetus. Such arguments are designed to confuse and deflect from the fundamental issue of a woman’s right to determine her own reproductive destiny. Though some parties do favour changes in
the law they are still a long way from a pro choice position and
appear to be more liberal only because the others are so rabid. Sinn
Fein do not have a pro choice position. The cases where they would
permit abortion are extremely limited and would only move things back a
situation similar to the one prior to the introduction of the new guidelines
by the DUP. That they were instrumental in the appointment
and reappointment of John Larkin as attorney general - despite being
aware of his extreme anti- abortion views - indicates that the issue is
not a priority for them. The Alliance party also faces
two ways on this issue, for while its MLAs introduced the amendments
to liberalise the law on abortion, its leader David Ford - in his role
as justice minister - has been blocking any change. None of the main
parties in the north are pro choice.
Class issue The draconian law the north has not prevented women having abortions but it has forced them to go outside the jurisdiction. Figures from the Department of Health in England and Wales show that every year around 800 women from Northern Ireland travel to Britain to have abortions. As many women give false addresses in Britain for fear of criminal sanction the actual factual figure is estimated to be probably nearer 2,000 per year. An important point to be made here is that while these procedures are mostly carried out within the British health service they are not paid for by the NHS. Even though they are UK citizens, women who live Northern Ireland are not entitled to an NHS-funded abortion at a clinic in England, Scotland or Wales. These are essentially private procedures that have to be financed by the women themselves. The cost of going private can stretch from £500 for an early term medical abortion to more than £2,040 for a surgical operation under general anaesthetic. For poor and working class women such costs can prove prohibitive and inevitably result in some women continuing pregnancies they don’t want, or seeking dangerous and illegal solutions. The almost total ban abortion punishes all women in the north but it is also the case that it bears down hardest on poorest and most marginalised. This came out very clearly in the case of the young women who was prosecuted under the Offences Against the Person Act. If she had financial resources she would never have faced such a prospect. While issues of sexuality and gender - such as abortion - can appear to be autonomous the issue of class always runs through them. Opposition Current opposition to the abortion laws comes from feminists, young people and the left groups. Unfortunately the activists draw heavily on the reformism and lobbying tactics adopted by the trade unions. Pointing out that the abortion laws were passed before Edison invented the electric light shows a belief that there is some hidden current towards progress in this society. It is unlikely to have any impact on the DUP, who formed their ideas 400 years before Edison. The slogan calling on politicians to trust women is utterly meaningless, suggesting that if we lobby politicians they will do the right thing and agree to liberalise the law. Any liberalisation of the abortion laws is unlikely to come through the Assembly. Under its administration the rights of women have been pushed back. This illustrates the reactionary character of the political settlement and also the broader denial of democratic rights that it represents. Change is also unlikely to come from a British Government which, like its predecessors, has shown no desire to liberalise the north of Ireland. The St Andrews Agreement, which brought the latest version of the Assembly into being, explicitly ruled out any change in legislation related to sexuality or gender. This was part of the lure to get the DUP to sign up to the institutions. A change may appear be more likely to come through the courts but again there is no evidence that judges will force the Executive to alter its position. Even in cases where it has been found to have acted unlawfully or breached human rights there has been no compulsion upon it to comply. The only means to bring about change is to build a working class movement than challenges the anti democratic nature of the political institutions and takes up questions of oppression. Rights relating to gender and sexuality such as the right to an abortion will not be won through the Assembly and Executive but in opposition to them. |