The Government have published their new legal framework for abortion services in Northern Ireland. But what exactly will this mean in practice?
Fulfilling its duty under the Northern Ireland (Executive Formation etc) Act 2019, last week the Northern Ireland Office published regulations setting out the new law on abortion in NI.
So what will the new legal framework look like in reality?
1. It will be legal to terminate a preborn baby's life functionally on request up to 24 weeks.
The impression being given by the regulations is that abortion is only available on request up to 12 weeks (as in the Republic of Ireland), and after this point it is only available up to 24 weeks if there are risks to the woman's physical or mental health.
However, in practice abortion on mental health grounds means, de facto, abortion on request. The Ground for abortion to 24 weeks in the new framework is very similar to Section 1(1)(a) of the Abortion Act 1967 which regulates abortion in Britain. This Ground is the basis on which 98% of the 9 million abortions in Britain have been performed since 1967.
There is no record of a woman being denied an abortion on this basis in the last ten years. It was never the intention of the instigators of the Abortion Act 1967 to allow abortion on request, but time has shown the practical outworking of the law is quite different.
In implementing these changes, the Government have therefore chosen to adopt the same law as Great Britain, but without regard to changing definitions of viability, given that an increasing number of babies now survive from 22 weeks gestation.
It is also worth stating that this affects all pregnant women in Northern Ireland. What abortion laws do is remove the legal personhood of all preborn babies; a baby cannot be a legal person with rights only if it is wanted. It is either a person or it is not.
2. Abortion up to 12 weeks can be certified by just one doctor, nurse or midwife.
The practical significance of permitting abortion for any reason up to 12 weeks in NI is that it can now be signed off by one doctor, nurse or midwife.
This is one area where the law deviates from Britain, where the Abortion Act 1967 requires two doctors to sign off on an abortion.
This is potentially significant in that it removes a level of safeguarding afforded to women. It also devalues the status of a preborn baby by removing legal safeguards around its termination, however much those may be ignored in practice in Britain.
3. Preborn babies can be legally terminated up to birth if they have a serious disability
“if the child were born, it would suffer from such physical or mental impairment as to be seriously disabled.”
This means abortion for Down's Syndrome and other conditions will be permissible in NI.
In Britain, the ill-defined terms used in statute (i.e. 'seriously handicapped') has led to abortions for minor disabilities such as cleft lip or club foot, as these could be indicative of other chromosomal abnormalities. On their own, however, they should not fulfil the requirement for 'serious handicap'.
Northern Ireland, previously a place where disabled people were safe from harm in the womb, now has a radically different culture towards disability. If NI follows in the footsteps of the UK, they could move from a position where 90% of babies diagnosed prenatally with Down's Syndrome are born, to a place where the vast majority are aborted. In Britain, for example, 74% of babies with Down's Syndrome were terminated in 2016.
The law sends a message, and the message it now sends is that you can now discriminate against people on the basis of their disability in Northern Ireland.
4. There is no longer any offence for causing a pregnant woman to lose her baby through violence or poison.
The framework makes no provision to address coercive abortion. Since this was covered by section 58 of the Offences Against the Person Act 1861 (part of the statute Westminster have now repealed) there is now no criminal offence for causing a woman to miscarry her baby through an act of violence against her person or through being poisoned.
What could this mean for women?
- If a woman is attacked or poisoned, and miscarries as a result, she can get no justice or recognition for the loss of her baby if it is under 24 weeks gestation. Her only remedy in law will be a claim of negligence or criminal offences, such as battery or GBH, but that can only be for harm done to her own person and not to her baby — that baby doesn't exist legally anymore.
- There will be no offence if a woman's partner (or anyone else for that matter) slips abortion pills into her drink or sandwich — these offences were previously the main offences charged under s. 58 of the Offences Against the Person Act 1861.
- There will be no justice for a woman in a domestic abuse scenario who is forced or coerced into taking abortion pills by her partner.
5. Abortions will potentially be available at GP surgeries
In Britain currently, abortions can only occur in hospitals or places approved by the Secretary of State. The new regulations potentially allow abortions at GP surgeries which is a significant diversion from the way services are provided in Britain.
Majority opposed to the law change
An overwhelming majority of those who responded to the public consultation on the new framework – 79 per cent – expressed their opposition to any change in the law on abortion in NI. The previous law allowed for abortion to save the life of the mother, or if there was a serious, long-term risk to her health. In this way it balanced the interests of mother and baby.
The fact that so many are clearly opposed to the change in the law demonstrates how unwanted this framework is in Northern Ireland, and how many will be deeply concerned and upset about these regulations. It is now up to MLAs to do what they can to overturn this law — one that will lead to many deaths, and will harm many women and men in the process.
One thing is still true: there is still hope for women and babies in Northern Ireland.