I am usually overt about opinion on these pages, but I thought it may be helpful to set out where we are with the abortion debate in Northern Ireland. I am very concerned that social media is as usual ablaze with “black and white” on an issue on which there is, as a matter of fact, a lot of grey.
Specifically, those seeking a particular outcome are duty-bound not just to call for it on social media and to castigate those they oppose, but to consider precisely how they are going to attain the outcome they seek in a democracy in which many people take a different view (and in which many of those people taking a different view have an elected mandate from the people). There remains a very real problem of people making demands to feel good about themselves, rather than considering how we progress towards an outcome.
I would welcome any corrections or further notes of precision on this, as the objective is to help debate (for the record, I have arrived at a broadly progressive viewpoint on the issue, but this is not about my opinion but about how to go about improving the standard of debate around the issue and particularly around what progress is practically deliverable in the short term).
Firstly, currently, there has been no direct legislative change in Northern Ireland since 1861 (the issue has been devolved to Stormont since 1921), meaning that any form of abortion in Northern Ireland is in effect illegal according to the law on abortion – with the penalty applied to the person carrying out the abortion. Regulations were in place allowing abortion in circumstances that the mother’s life or mental well-being were at risk, but the legal position around these regulations is unclear. It is not illegal to travel elsewhere to seek an abortion, and the practical outcome is that thousands of women have done just that in recent decades.
Secondly, there is a definite majority in the Northern Ireland Assembly which is sceptical about any legislative change at all and which is opposed to extension of the 1967 Act (as amended or otherwise) which applies to Great Britain. (That Act is in itself worth reading – the practical outworking of the Act, as applied in subsequent judgments, is arguably quite different from its original intention. Even if it were passed in Northern Ireland, it is possible that legal precedent and judgments would deliver a slightly different outcome in practice. The details of this, however, are for law courses, not a single blog post.)
Thirdly, the current Justice Minister, David Ford, has decided to try to legislate – this may be read either as clarifying the law or changing it, depending on your point of view. He judged two things: a) leaving the 1861 Act in place (which, for example, requires women to give birth to fatally deformed children) would be frankly obscene; and b) attempting to introduce the 1967 Act from Great Britain would be voted down in the Assembly, given that everything has to pass both the DUP and Sinn Fein. Frustrating though it may genuinely be to admit it, rationally he is right on both counts.
Fourthly, the Minister decided that the priority was to seek to change the law to deal with cases of fatal foetal abnormality or sexual crime (rape, in other words), judging that there was at least the potential to get a law dealing with these (i.e. allowing abortion to be carried out in Northern Ireland in those circumstances) through the Assembly. The subsequent consultation: a) confirmed that there was support for and a means of legislating to allow the offer of “termination” in cases of fatal foetal abnormality; and b) noted support for allowing “termination” in case of sexual crime, but found no way to legislate specifically for this.
Fifthly, this is where judging the situation becomes trickier. It is just about possible that there would be support in the Assembly before or after May’s election for allowing abortion in cases of rape, but in practice not for abortion in general (given absolute DUP and SDLP opposition) – but, legislatively, the former cannot be achieved without the latter. For this reason, it is not practically possible to pass legislation in the Assembly – now or in the foreseeable future – to allow abortion in cases of rape.
However, sixthly, there was then a legal judgment stating that not allowing abortion in case of fatal foetal abnormality or sexual crime was incompatible with human rights. The judgment in effect stated that Human Rights Law requires the Assembly to legislate to allow abortion in both cases. The complication, as noted above, is that this in effect means legislating effectively to allow abortion whenever requested (referred to often as “abortion in demand”, although I personally dislike that term as it diminishes the genuine trauma involved around the decision). Concerned that the practical outcome of all of this would be no legislation at all to change or clarify the 1861 Act, the Department appealed the judgment in an attempt to allow it at least to pass legislation concerning specifically fatal foetal abnormality. Whether that concern is justified is a matter of opinion up to a point, but we should note that passing anything through the NI Assembly equivalent to the 1967 Act in Great Britain will not be possible any time soon (certainly not this decade; for a start, it is inconceivable that the DUP will dip below the 30 seats necessary for a Petition of Concern this decade).
I hope, finally, that this provides some explanation as the complexity of the subject in general given the make-up of the NI Assembly, and in particular of the process of achieving legislative change on the issue of abortion. There are of course many other issues here – the relative lack of female representation in the Assembly, the evidence that the Assembly is out of step with public opinion on this issue, and the desirability or otherwise of religious doctrine interfering on evidence-based policy-making being among them. Those are topics which need to be debated, but which are beyond the confines of a short blog piece.
For what it is worth, in my opinion, it would be worthwhile to test support in the Assembly both for extension of the 1967 Act and specifically for allowing the offer of “termination” in the case of fatal foetal abnormality. In my judgement, the former would fail by a big majority (as it stands), but the latter has at least the potential to pass right now [in fact this proved on 10 February 2016 not to be the case, as both the DUP and SDLP were whipped to oppose it and the Ulster Unionists broke heavily with them; the issue will return to the new Assembly later in the year]. A specific law on cases of fatal foetal abnormality would provide clarity at least to some, though no doubt even its advocates would point out it would not be enough to meet the requirements of the judgment. In the meantime, we will watch the appeals and cross-appeals of that judgment with interest.
An addendum: the Assembly voted on 10 February not to pass legislation specifically allowing termination in case of fatal foetal abnormality or sexual crime (two separate amendments). There is some consequent confusion over precisely what a legal judgment compels a legislature to do (the one-word answer is “nothing”) and indeed what the existing law is (the one-word answer is “uncertain”).
The purpose of the judgment, in this case, was to point out that existing abortion law is incompatible with existing human rights law. The legislature (in this case the NI Assembly) should act to address such incompatibility, otherwise it is not doing its job, but it is not compelled to. If it does not (and at time of writing it has chosen not to), then most laws co-exist and it would be for the courts to decide if one is a defence against the other. For example, right now, a doctor prosecuted carrying out a termination in case of fatal foetal abnormality or sexual crime would be able to cite the Human Rights Act in their defence – it would be for the courts to decide of that defence was legitimate. For what it is worth, given the judgment, I would expect them to deem that it was legitimate in such an instance – this means in effect that abortion in case of fatal foetal abnormality or sexual crime is probably already legal in Northern Ireland but, in the absence of enough competent legislators in the Assembly, someone would need to take a significant risk to prove it.
Chief Human Rights Commissioner explained this on the BBC Nolan programme the following morning.