Accessing abortion services in Northern Ireland
by Orna YOUNG for FactCheckNI
11 October 2019
There have been changes in the accessibility of abortion services in Northern Ireland. In this article, FactCheckNI seeks to provide both a historical and contemporary context for these changes, and to clarify the new guidelines.
The Abortion Act 1967 in the UK, as amended by the Human Fertilisation and Embryology Act 1990, did not extend to Northern Ireland, and the grounds under which a termination of pregnancy may be carried out here were more restrictive than those in Great Britain.
In Northern Ireland, the law relating to the termination of pregnancy was contained in sections 58 and 59 of the Offences Against the Person Act 1861, and in section 25 of the Criminal Justice Act (Northern Ireland) 1945.
Rather than making abortion legal, the Abortion Act 1967 made exceptions to the Offences Against the Person Act 1861, which made having or providing an abortion a crime, carrying a potential life sentence. The 1967 Abortion Act meant that two doctors could legally authorise an abortion, as long as certain requirements were met. As a result, the decision to have an abortion did not legally lie with the individual, but with the doctors acting on their behalf.
As a result of this legislation, reproductive freedom in Northern Ireland was limited in all but the most exceptional circumstances. Rape, incest and fatal foetal anomaly were not circumstances in which a person could exercise their reproductive rights. Section 5 of the Criminal Law Act (Northern Ireland) 1967 creates the offence of withholding information if a person knows or believes an offence has been committed. The FPA (formerly the Family Planning Association) detail that this effectively placed healthcare professionals at risk of prosecution if they fail to disclose knowledge of an illegal abortion, thus breaching patient confidentiality.
The 1967 Abortion Act covers England, Scotland and Wales. This means pregnant people in Northern Ireland were largely unable to access NHS funded abortion services locally. In fact, between 2017/18, 12 abortions were carried out in Northern Ireland.
At least 1,053 women from Northern Ireland travelled to England and Wales to access an abortion in 2018. Fewer than 10 women had terminations in Scotland. These figures do not include the numbers of women who take abortion pills bought online.
The FPA initiated judicial proceedings against the Department of Health, Social Services and Public Safety (DHSSPS) in 2001, requesting that official guidance is provided for healthcare professionals in Northern Ireland. The case was lost but an appeal was won in 2004.
Thus, the courts in Northern Ireland had to interpret the word “unlawful” in the 1861 Offences Against the Person Act, using the Criminal Justice (Northern Ireland) Act 1945 and the precedent set in Bourne. In the judgment in Northern Health and Social Services Board v A & Ors, the Court clarified the legality of abortion:
“The doctor’s act is lawful where the continuance of pregnancy would adversely affect the mental health or physical health of the mother… The adverse effect must, however, be a real and serious one and it will always be a question of fact and degree whether the perceived effect of non-termination is sufficiently grave to warrant terminating the unborn child.”
Despite this clarification, without legislation there was continuing legal uncertainty over the precise circumstances in which abortion is lawful in Northern Ireland. After a lengthy process, including further judicial review, in 2016 the DHSSPS produced Guidance for health and social care professionals on termination of pregnancy in Northern Ireland. The guidance stated that an abortion was lawful only where:
- it is necessary to preserve the life of the woman
- there is a risk of real and serious adverse effect on a pregnant woman’s physical or mental health if she continues with the pregnancy, which is either long term or permanent
Human rights violation
On 3 October 2019, the High Court in Belfast ruled that Northern Ireland’s abortion law breaches the UK’s human rights commitments. The case was taken in Belfast by Sarah Ewart, who challenged the law after she was denied a termination when she was diagnosed with a fatal fetal abnormality in 2013.
New guidelines were released by the Northern Ireland Office, for the provision of abortion in Northern Ireland, to cover the period 22 October 2019 to 31 March 2020. They were issued in advance of the abortion provisions in the Northern Ireland (Executive Formation etc) Act 2019 (the NIEF Act) which comes into force on 22 October if the Northern Ireland Executive has not been restored by 21 October. Their guidelines state: “The Government recognises the sensitivities of these issues … as well as the importance of ensuring women’s safety and well-being, and providing as much clarity for the healthcare profession as possible.”
This also applies to qualified health care professionals, or others who provide and assist in abortion procedures.
No plans for additional services before 31 March 2020
The guidelines state that there are no plans for additional services to be routinely available in Northern Ireland before 31 March 2020:
“For example, there is no expectation that general practitioners (GPs) will prescribe medication for early medical abortion. In England and Wales GPs do not provide abortion services. However, services will continue to be available under the existing common law provisions as set out above. Doctors remain under a duty to act where a woman’s life or health is at risk.”
This provides five months for services to be developed, and staff to be trained, to ensure abortion services are available to women in Northern Ireland by 31 March 2020.
Halt on any ongoing prosecutions
The guidelines state:
“If the [Northern Ireland] Executive has not reformed on or before 21 October 2019, the following will occur — Sections 58 and 59 of the Offences Against the Person Act 1861 are repealed so that no criminal charges can be brought against those who have an abortion.”
There have been some high profile cases in Northern Ireland, including in regards to the procurement of abortion pills.
NICE and RCOG guidelines available
The guidelines explain that if a health professional does choose to offer an abortion service to women during the interim period that “[C]linical guidance is available from the National Institute of Clinical Excellence (NICE) and the Royal College of Obstetricians and Gynaecologists (RCOG).”
Health professionals to provide information on services in England
Health professionals in Northern Ireland will be supplied with information about funded services in England, and they should provide women requesting information with the number for a central booking system run by the British Pregnancy Advisory Service (BPAS), which offers a package of care, without charge.
Travel and accommodation will be free
In 2015, it was calculated that the cost of abortions for women travelling to England and Wales ranged from £400 to £1,500 for the treatment, with travel and potential accommodation costs in addition.
In 2017, Stella Creasy made an amendment to the Queen’s speech, which allowed people from Northern Ireland to access abortion services without charge in England (this was extended to Wales and Scotland in 2018). However, this did not include travel costs, which continued to be paid by individuals.
From 22 October 2019, if the 2019 Northern Ireland (Executive Formation etc) Act comes into effect, then all travel and, if needed, accommodation, will be funded through the scheme. Access to the scheme from 22 October 2019 will not be means tested.
No duty to report online procurement of abortion pills
The guidelines state that if the 2019 Northern Ireland (Executive Formation etc) Act comes into effect, with sections 58 and 59 of the Offences Against the Person Act 1861 having been repealed, there will be no offence to consider in regards to reporting the procurement of abortion pills online. Health professionals will not be under any duty to report an offence.
The new guidelines note that “consideration is being given to providing for conscientious objection in the new legal framework from the end of March 2020”. They detail that in Great Britain, conscientious objection is only facilitated in the direct provision (i.e. “hands-on capacity”) role of practitioners in abortion services; it does not include administrative or ancillary staff, for example. Those who wish to raise a conscientious objection to abortion are advised to discuss this with their employer; their personal views and beliefs are not to be expressed with patients.
Fatal or serious fetal abnormality
The guidelines state that healthcare professionals may choose to treat a woman where a fatal or serious fetal anomaly has been detected. Clinical guidance is available from the National Institute of Clinical Excellence (NICE) and the Royal College of Obstetricians and Gynaecologists (RCOG).
In regards to cases of fatal fetal abnormality, in 2016 a Northern Ireland inter-government departmental working group published a report on termination of such pregnancies. The report was commissioned by the then Northern Ireland Health and Justice Ministers, with a view to informing Northern Ireland Executive policy deliberations. It states: “[F]atal fetal abnormality is an acceptable description of a diagnosis made, usually around 20 weeks gestation, of a fetal abnormality [that] will result in death in utero, at birth or shortly after birth.”
In regards to cases of serious fetal abnormality, this relates to cases where the unborn child, if born, “would suffer from such physical or mental abnormalities as to be seriously handicapped”, as per the 1967 Abortion Act, which does not provide a definition of “seriously handicapped”. In its publication, “The Law and Ethics of Abortion”, the British Medical Association (BMA) expresses its views on factors that may be taken into account in assessing the seriousness of a handicap. The BMA also believes that a legal definition of “serious handicap” should not be provided, in order to allow sufficient flexibility for clinical judgments of individual cases.
Regulations to introduce a new legal framework for abortion in Northern Ireland are due to be in place by 31 March 2020. The General Medical Council regulates doctors and the Nursing and Midwifery Council regulates nurses and midwives. The current law removes criminal penalties for women and doctors, but not the regulation of abortion services, which will remain in place.
The Guidelines detail that other relevant laws will stay in place, such as Section 25(1) of the Criminal Justice Act (Northern Ireland) 1945. This makes it a criminal offence for anyone to assist or wilfully act to “destroy the life of a child then capable of being born alive’, except where the purpose is to preserve the life of the mother ‘in good faith’”. At present, the upper limit for accessing abortion services in Great Britain is 24 weeks, except in three specific circumstances:
- where, if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped
- where termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman or to save her life
- if the continuance of the pregnancy will involve risk to the life of the pregnant woman greater than if the pregnancy were terminated
The published guidelines set out what will happen following changes to the law due to come into effect on 22 October 2019, if the Northern Ireland Executive has not been restored by 21 October 2019, and until consultation on the proposed legal framework (due to open on or shortly after 22 October 2019) has been carried out.
The BBC details that the government states that while there are “urgent timescales” presented by the 21 October 2019 deadline, there are currently no plans for additional services to be routinely available in Northern Ireland before 31 March 2020. They also give the example that there is no expectation that GPs will prescribe medication for early medical abortion.