The LPNI have a very clear policy on the issue of reproductive rights. At a general meeting in September 2012 the NI Constituency Labour Party unanimously passed a motion supporting the extension of the Abortion Act 1967 to Northern Ireland.
We believe that the proposed guidelines would fail in their stated intention of clarifying our existing legislation as it has been interpreted by the courts. On the contrary, they would introduce further uncertainty, increase health risks to women and open the way to litigation on several levels.
We note and support the call by the United Nations Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) in July 2008, where they stated that the lack of access to abortion in Northern Ireland had detrimental consequences for women's health, and called for a public consultation on the issue.
CEDAW had already made similar recommendations to the UK Government about abortion in Northern Ireland in 1999. However, both the UK and Northern Ireland Governments have consistently failed to take any action over the last fourteen years, despite being legally obliged to.
We also note that the Equality Commission in their submission to the CEDAW Committee in 2008 recommended ‘the same access to reproductive health care services and rights in Northern Ireland as are available in Great Britain’. As long ago as 1994, the Standing Advisory Commission on Human Rights (SACHR) highlighted the inconsistencies governing abortion law in Northern Ireland. It is unacceptable that since the introduction of the Human Rights Act 1998, there has not been any real effort to address the human rights implications of Northern Irish abortion law.
These draft guidelines do nothing to change the legal status of abortion in Northern Ireland which will remain that abortions here are governed by the Offences Against the Person Act 1861. That is a matter of deep concern.
The guidelines do not attempt to define what medical health risks may be severe enough to warrant a legal abortion. The situation pertaining to health risks, such as cancer, complications arising from pregnancy or mental health issues, is still not defined, meaning that the majority of women will still either need to travel to England or seek clarity through the courts.
The guidelines make no provision for cases where a woman has been the victim of rape or incest, or for cases of foetal abnormality, including fatal foetal abnormality.
In addition, we draw attention to the use of emotive and non-medical language throughout the draft document. The term ‘unborn child’ has no legal status and has been disputed by the courts; the correct term should be ‘foetus’.
The 1967 Abortion Act allows abortions to be carried out only in England, Scotland and Wales. Northern Ireland’s exclusion from this legislation denies women here their equal entitlement to healthcare and reproductive rights within the UK. The proposed guidelines suggest that, since abortion here is still governed by the Offences Against the Person Act 1861, it may be a criminal offense to counsel on the availability of abortion facilities elsewhere in the UK or potentially to use them.
This opens up a legal minefield as was shown by the X case in the Republic of Ireland when efforts were made to stop a pregnant person travelling to England for an abortion. The Irish authorities were required by the European Courts to legislate for this situation and clearly an attempt to enforce this aspect of the guidelines could face a similar challenge.
The current high cost encountered by women in Northern Ireland in obtaining an abortion outside of the jurisdiction is clearly placing the UK in violation of the right to health. This service for women in England, Scotland and Wales is provided under the National Health Service, in that it is provided to the vast majority of women free of charge. Women from Northern Ireland, however, despite being UK citizens and paying the same taxes, often have to access abortion services through the private sector and also must pay for travel and accommodation.
The draft guidelines move beyond the current legislative framework by saying that ‘where possible’ two doctors should undertake the clinical assessment of the woman. This does not reflect the case law but is an attempt to extend it; any attempt to enforce it is open to legal challenge both by medical staff and patients. Clearly if seeking a second opinion, or a disagreement between doctors, led to a delay which was injurious to a woman’s health there would be a case for compensation against the department.
The consequences of such delays would not be limited to legal or financial considerations; it was just such prevarication and uncertainty over the circumstances in which abortion was allowed which directly led to the death of Savita Halapannavar in the Republic of Ireland last year.
The draft guidelines fail to take account of public opinion in Northern Ireland, where repeated surveys have shown that the majority here are firmly prochoice.
For example, the 2008 survey carried out by market researchers Millward Brown Ulster showed that nearly two thirds of Northern Irish people held that abortion should be legal in cases of rape or incest and that it should be legal on grounds of foetal abnormality.
In addition, it is difficult to believe that medical opinion has not been taken into account.
In 2009, for example, medical sociologist Colin Francome surveyed 37 out of 42 gynaecologists working in NI and found that a majority of respondents would support liberalising the current abortion law, with only 32% saying the law should stay as it is. Asked under what conditions they would personally carry out abortions, 70% said foetal abnormality and 49% said where the woman has been raped, although 68% said it should be legal in cases of rape. There was widespread support for abortion being more easily available on the NHS, 73% wanted free abortions for NI women forced to travel for the procedure; and 51% supported major abortion charities being licensed to carry out abortions in Northern Ireland.
In November 2012, a Belfast Telegraph/LucidTalk opinion poll found that 45% of people surveyed were either for legalising abortion or making it available for victims of rape or incest.
We are also concerned at the lack of clarity in the draft guidelines in relation to the provision of advice on abortion services outside Northern Ireland.
Section 5.12 says
The question of whether it would be lawful in Northern Ireland to advocate or promote, to a pregnant woman in Northern Ireland, the termination of her pregnancy outside Northern Ireland, where that termination of pregnancy would be lawful in the place where it was to be carried out, but would not be lawful if it was being carried out in Northern Ireland, has never been considered by the courts. This is a ‘grey area’ in which, pending clarification by the courts, the lawfulness of such conduct would have to be regarded as uncertain.
This is clearly wrong. The issue of the provision of information relating to termination services outside a particular jurisdiction has already come before the European Court of Human Rights (29 October 1992).
In the case of Open Door and Dublin Well Woman Centre v Ireland, the Court found that the state preventing independent counsellors from providing information on termination of pregnancy facilities abroad violated Article 10 ECHR (freedom of expression – to receive and impart information).
Since domestic courts have to take into account judgements of the European Court of Human Rights, it is unclear why the draft guidelines find it necessary to say that the ‘lawfulness of such conduct would have to be regarded as uncertain’.
Paragraph 1.7, which says that a ‘data collection system is being developed to assess the grounds for termination of pregnancies taking place in Northern Ireland’ risks breaching patient confidentiality. The Health Minister has already made it clear that he expects medical staff to provide explanations for individual abortions to both the Minister and the department. Paragraph 3.10 compounds this risk with its emphasis that ‘ the record should show a full and clear rationale behind the decision to carry out a termination of pregnancy, why it is the most appropriate clinical management for the woman involved, and should include any consultation that has taken place with other medical professionals.’
This is a clear conflict with paragraph 5.19 on patient confidentiality.
Paragraph 8.5 states that ‘Trusts should make women aware of the chaplaincy services available to them for spiritual and pastoral care should they wish to avail of them.’ This is unnecessary; medical staff should not be placed in the position of offering religious guidance. Most people who have a religious faith will already be aware of the existence of chaplaincy services and it would be wrong to assume that everyone accessing healthcare provision has a religious faith or one that is covered by the chaplaincy services.
Rather than urging women to use chaplaincy services for ‘spiritual and pastoral care’, Trusts should be warning of the legal dangers of doctors introducing religious topics beyond what is specifically requested. It is inappropriate to provide guidelines that would create the risk of litigation.
In conclusion, the LPNI believes that flawed legislation first enacted in the 19th century (Offences Against the Person Act 1861) is not fit for purpose in the 21st century. It is time to stop pretending that women in Northern Ireland are different from women in the rest of the United Kingdom. They are not. When faced with an unplanned or crisis pregnancy, they have a right to access health care services that are freely available in the rest of the UK.
Northern Ireland Constituency Labour Party in Northern Ireland
in response to the Health Minister’s consultative document, ‘The limited circumstances for a lawful termination of pregnancy in Northern Ireland, a guidance document for health and social care professionals on law and clinical practice’.
26 July 2013