By Dr Sheelagh McGuinness, Reader in Law (University of Bristol Law School) & Professor Sir Jonathan Montgomery, Professor of Healthcare Law (UCL Laws).
October 22nd 2019 marked a momentous day for those who have advocated for decades for liberalisation of Northern Ireland’s restrictive abortion laws.[1] Following the implementation of Section 9 of the Northern Ireland Executive Formation Act 2019, abortion up until 24 weeks gestation is decriminalised. In addition to this, an obligation has been placed on the Secretary of State for Northern Ireland to ensure that adequate regulations are in place by the end of March 2020 to ensure a human rights compliant framework for provision of abortion care.
This is the first of a two-part blog. Here we focus on what decriminalisation of abortion means for regulation of abortion in Northern Ireland.[2] In the next part we will provide an account of what the content of human rights compliant abortion regulations should be.
What was the law?
Prior to October 22nd abortion in Northern Ireland was primarily governed by the criminal law, specifically, sections 58 and 59 of the Offences Against the Person Act 1861 which prohibit the procuring of a miscarriage and the Criminal Justice Act (Northern Ireland) 1945, section 25 which prohibits causing the death of “a child then capable of being born alive”. The Abortion Act 1967, which governs abortion in Great Britain, was never extended to Northern Ireland.
The 1945 legislation permits of a defence to the criminal charge where a termination is performed for “the purpose only of preserving the life of the mother”. The wording of the 1861 legislation does not provide any defence, however, the 1938 case of R v Bourne stated a defence should exist if the doctor took the view that continuing the pregnancy would render the woman ‘a physical or mental wreck’.[3] In Northern Ireland it was clarified that the Bourne exception also applied, although this had until recently been interpreted restrictively.[4] In Re AMNH the Court found that the continuation of the pregnancy must pose a ‘real and serious risk’ to the woman’ s health, and in Western Health and Social Services Board v CMB the Court held that the risk must be ‘permanent or long term’.[5] More recently, authority for a more liberal interpretation of the exception can be found in the dicta of Morgan CJ in Attorney General for Northern Ireland & The Department for Justice v The Northern Ireland Human Rights Commission:
“In my opinion that requires the court to determine what is reasonably tolerable in today’s society. That is not to be defined by the values of the 1930s. I conclude that circumstances such as those described in those affidavits fall within the scope of the Bourne exception interpreted in accordance with that test. I consider that in each case the effects on these women were such that the option of abortion in this jurisdiction after appropriate advice should have been open. That conclusion is not dependent upon the state of health of the foetus.”[6]
This is an important interpretation to keep in mind when thinking about what future abortion regulations should look like. International human rights organisations have condemned the use of criminal law in the regulation of abortion care.[7] The European Court of Human Rights (ECHR) has acknowledged that the threat of criminal sanction could have a ‘chilling effect’ on clinical practice.[8] This matters for the safety of services if it distracts professional attention away from clinical care into defensive practice, a phenomenon that Lord Denning once graphically described unflatteringly as a ‘dagger’ at the doctor’s back.[9] The maximum penalty for illegal abortion, including self-inducement by the woman herself, is life imprisonment.
In addition to the statutory provisions in the early 2000s there was litigation in the form of a judicial review of the Department of Health, Social Services and Public Safety’s not publishing guidance on when and how abortion should be provided. The Northern Irish Court of Appeal ultimately found that the DHSSPS did have an obligation to produce this guidance.[10] However, there was further wrangling over drafting and litigation before the ‘Guidance for Health and Social Care Professionals on Termination of Pregnancy in Northern Ireland’ was published in 2016. The Guidance has been criticised for having a chilling effect as the threat of criminal prosecution may deter appropriate medical practice.[11]
To summarise then prior to October 22nd 2019 the framework for provision and regulation of abortion was highly restrictive.
Northern Ireland Executive Formation Act 2019
In July 2019 Stella Creasy tabled amendments to the then Northern Ireland Executive Formation Bill to repeal sections 58 and 59 of the Offences Against the Person Act 1861 and to place an obligation on the Westminster Government to ensure human rights compliant regulations for provision of abortion in keeping with CEDAW recommendations.
The CEDAW recommendations included:
The Committee recommends that the State party urgently:
- Repeal sections 58 and 59 of the Offences against the Person Act, 1861, so that no criminal charges can be brought against women and girls who undergo abortion or against qualified health-care professionals and all others who provide and assist in the abortion;
- Adopt legislation to provide for expanded grounds to legalize abortion at least in the following cases:
- Threat to the pregnant woman’s physical or mental health, without conditionality of “long-term or permanent” effects;
- Rape and incest;
- Severe fetal impairment, including fatal fetal abnormality, without perpetuating stereotypes towards persons with disabilities and ensuring appropriate and ongoing support, social and financial, for women who decide to carry such pregnancies to term;
- Introduce, as an interim measure, a moratorium on the application of criminal laws concerning abortion and cease all related arrests, investigations and criminal prosecutions, including of women seeking post-abortion care and health-care professionals;
- Adopt evidence-based protocols for health-care professionals on providing legal abortions particularly on the grounds of physical and mental health and ensure continuous training on the protocols;
The Committee recommends that the State party:
- Protect women from harassment by anti-abortion protesters by investigating complaints and prosecuting and punishing perpetrators.
When voted on in the House of Commons the amendments were accepted by a majority of 327 votes to 64.
Section 9 of the Northern Ireland Executive Formation Act 2019 reads:
Abortion etc: implementation of CEDAW recommendations
- The Secretary of State must ensure that the recommendations in paragraphs 85 and 86 of the CEDAW report are implemented in respect of Northern Ireland.
- Sections 58 and 59 of the Offences Against the Person Act 1861 (attempts to procure abortion) are repealed under the law of Northern Ireland.
- No investigation may be carried out, and no criminal proceedings may be brought or continued, in respect of an offence under those sections under the law of Northern Ireland (whenever committed).
- The Secretary of State must by regulations make whatever other changes to the law of Northern Ireland appear to the Secretary of State to be necessary or appropriate for the purpose of complying with subsection (1).
- Regulations under subsection (4) must, in particular, make provision for the purposes of regulating abortions in Northern Ireland, including provision as to the circumstances in which an abortion may take place.
- Regulations under subsection (4) must be made so as to come into force by 31 March 2020 (but this does not in any way limit the re-exercise of the power).
- The Secretary of State must carry out the duties imposed by this section expeditiously, recognising the importance of doing so for protecting the human rights of women in Northern Ireland.
- The Secretary of State may by regulations make any provision that appears to the Secretary of State to be appropriate in view of subsection (2) or (3).
- Regulations under this section may make any provision that could be made by an Act of the Northern Ireland Assembly.
- In this section “the CEDAW report” means the Report of the Inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW/C/OP.8/GBR/1) published on 6 March 2018.
No executive was formed and as a result of the above abortion in Northern Ireland up until 24 weeks gestation has been decriminalised.
What is the legal framework for abortion in Northern Ireland from October 22nd 2019?
As detailed above sections 58 & 59 of the Offences Against the Persons Act 1861 have now been repealed. Section 25 of the Criminal Justice Act 1945 remains. This means that prior to the 24th week of pregnancy abortion, performed with the consent of the pregnant woman, will be decriminalised. Abortions post 24 weeks, even with consent, are prohibited unless performed to save the life of the pregnant woman.
It is important at this point to say that the criminal law is neither a necessary, nor appropriate framework, for ensuring patient safety and facilitating best medical practice. Like any other area of healthcare abortion is governed by the following:
Consent
Consent is a necessary aspect of lawful provision of healthcare, including abortion. If an abortion is performed without consent, regardless of gestational stage, this would constitute a criminal offence.
RIQA
The Regulation and Quality Improvement Authority (RQIA) has responsibility for monitoring and inspecting “the availability and quality of health and social care services in Northern Ireland”. The Authority was established as follows:
The Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003, created the enabling legal framework for raising the quality of health and social care services in Northern Ireland, and extended regulation and quality improvement to a wider range of services. In April 2005, the Regulation and Quality Improvement Authority (RQIA) was established as a non-departmental public body of the DHSSPS.
RIQA has responsibility for registering and inspecting HSC (NHS) trusts and hospitals; GP practices; mental health services; social care; and independent providers. If problems are found with the provision of care RIQA has the authority to issue improvement notices; suspend or cancel registration; prosecute; and set out special measures (if authorised by Department of Health). The equivalent in England and Wales is the Care Quality Commission. In 2012, following an undercover ‘sting’ by the Telegraph newspaper, Andrew Lansley, then Secretary of State for Health, called on to CQC to undertake clinic and hospital inspections as the appropriate mechanism for assuring himself that the Abortion Act 1967 was not being flouted. It could be argued that this evidences the fact that when ensuring patient safety and appropriate standards for care the normal mechanism of healthcare regulation are far more suitable than the criminal law.
Professional Accountability (fitness to practise, complaints, and litigation)
The General Medical Council has statutory responsibility for regulating doctors and ensuring that they act in accordance with the standards of good medical practice set out the GMC Code of Practice. If doctors are found to be flouting this Code they can be subject to professional Sanction. The Nursing and Midwifery Council has similar responsibilities for nurses and midwives. As such all healthcare practitioners, including those who may be involved in the provision of abortion care, are subject to professional regulation.
Healthcare practitioners have a duty of care to their patients. Medical treatment, including abortion care, must be provided in accordance with a specified standard. Negligence governs situations where such care falls below such a specified standard and provides an avenue for redress for women who feel their care was not of an appropriate standard.
NICE
The National Institute for Clinical Excellence has responsibility for developing clinically appropriate treatment regimes for all areas of medical care. In 2019, NICE produced its first guidelines on appropriate treatment protocols for abortion care. Subject to approval by the Northern Ireland Department of Health these guidelines would outline the most clinically appropriate treatment for provision of abortion care.
In addition to the above there are also controls placed on “sale and supply of medicines including abortifacients”.[12]
The above serves to demonstrate that far from being ‘unregulated’, abortion care in Northern Ireland is already subject to very detailed regulation as is all health care. This is all important to remember when we consider what the regulations in March 2020 should look like.
What next?
We are now in the interim period between the implementation of Section 9 of the NIEFA and the production of regulations to govern abortion care. In October 2019 the Northern Ireland Office published the ‘UK Government Guidance for Healthcare Professional in Northern Ireland on Abortion Law and Terminations of Pregnancy in the Period 22 October 2019 to 31 March 2020 in relation to the Northern Ireland (Executive Formation Etc) Act 2019’.
The interim guidance is somewhat disappointing and opens with the following statement:
Given the urgent timescales we are working to, and in the absence of a legal abortion framework in which services could operate, there are no plans for additional services to be routinely available in Northern Ireland before 31 March 2020.
As detailed above it is not the case that there is an absence of a legal abortion framework. Abortion is a form of healthcare and as such is governed by the rules set out above. Indeed the Guidance notes that:
If a health professional does choose to offer an abortion service to women during the interim period, they should do so in line with their professional competence and guidance from their professional body… Clinical guidance is available from the National Institute of Clinical Excellence (NICE) and the Royal College of Obstetricians and Gynaecologists (RCOG).
The document seems to presume that abortion needs a special statutory regime and indeed at times hints at the moral/ criminal code as being a necessary part of the frame for governance. It is beyond the scope of this blog to outline what the regulations should look like, We will come back to that again, suffice to say that regulation within a ‘moral’ or criminal code is archaic, not human rights compliant, and not suitable for promoting best clinical practice.[13]
In addition to its framing of abortion the guidance is disappointing in adopting travel as the primary mechanism through which to facilitate access to abortion. It is welcome that booking will be made easier and costs will be covered. However, it is disappointing that instead the focus wasn’t on provision within Northern Ireland or indeed the use of telemedicine to ensure that women would not have to travel.The next steps in developing regulations will be a public consultation which should open soon. This consultation will gather views on what appropriate regulations should look like and these regulations will come into force by March 31st 2020.
Conclusion
The 22nd of October is a momentous day in the history of abortion law reform in Northern Ireland. Abortion up until the 24th week of pregnancy has been decriminalised.
Whether it is necessary or desirable to have specific regulations is subject to debate. Some believe that it is necessary regulate abortion through the criminal law in order to reduce its incidence. However the evidence shows that the intuition that restrictive laws reduce the prevalence of abortion is mistaken. Legal restrictions do not per se reduce the number of abortions taking place; indeed a recent study indicates that there is often a higher incidence of abortion in countries where restrictions are tighter.In addition to this barriers, including legal barriers, often causes women delay in when they access services. These are points to remember when considering arguments which assume that the absence of a specific legal restriction on abortions after 24 weeks’ gestation would automatically lead to an increase in the number of procedures taking place.
Professor Lesley Regan, President of the Royal College of Obstetricians and Gynaecologists, has summarised the opportunity that reform of abortion laws in Northern Ireland presents as follows:
The future legal framework is an opportunity to establish a first-class abortion care service, where the needs of women and their families are at the centre of the care they receive. And where healthcare professionals can care for women without fear of prosecution.
Introducing of progressive regulations is an important opportunity to shift the traditional criminal framework for regulating abortion to a more facilitative and progressive approach that aims to vindicate the rights of pregnant women. Such an approach would focus on ensuring access to abortion care rather than stigmatising individual choices, characteristics, or the medical profession. In addition such regulations should set out clearly the obligations on the State with regard to provision of abortion, for example ensuring that women are not obstructed or harassed when entering healthcare premises.
For those who believe that abortion should be provided in a clinically optimal human rights compliant fashion this is the first step on the road and it is now important to advocate for progressive abortion regulations that ensure the key tenets of CEDAW are upheld.
[1] See for example ‘Alliance for Choice Press Release’ https://us11.campaign-archive.com/?u=a00ff07d38721028e7398b9f8&id=a6399aef27; ‘Campaigners welcome historic day as abortion is decriminalised in Northern Ireland’ https://londonirisharc.com/press-releases/2019/6/14/campaigners-welcome-historic-day-as-abortion-decriminalised-in-northern-ireland.
[2] This blog picks up on themes in evidence presented to the All-Party Parliamentary Group on Population, Development and Reproductive Health. See: http://www.appg-popdevrh.org.uk/University%20of%20Bristol.pdf
[3] R v Bourne [1938] 3 All ER 615
[4] For a summary of the position see Marie Fox and Sheelagh McGuinness ‘In the Matter of an Application for Judicial Review by the Northern Ireland Human Rights Commission (2015)’ in Erika Rackley and Rosemary Auchmuty (eds) Women’s Legal Landmarks: Celebrating the history of women and law in the UK (Bloomsbury Publishing, 2018)
[5] Re AMNH [1994] NIJB 1; Western Health and Social Services Board v CMB, High Court (Family Division), 29 September 1995 (unreported).
[6] [2017] NICA 42 Para [79]
[7] See for example ‘She is not a criminal: The impact of Ireland’s Abortion Law’ (Amnesty International, 2015) pp 104-106. https://www.amnesty.org.uk/files/she_is_not_a_criminal_report_-_embargoed_09_june.pdf; ‘Consultation Response from the Reproductive Health Law and Policy Advisory Group – Women and Equalities Committee Inquiry: Abortion Law in Northern Ireland’ https://reproductivehealthlawpolicy.files.wordpress.com/2018/11/women-and-equalities-committee-inquiry-response-rhlpag.pdf.
[8] A, B and C v. Ireland (2010) ECHR 2032, Application no 25579/05
[9] Hatcher v. Black, Times, 2 July 1954
[10] Family Planning Association of Northern Ireland v Minister of Health and Social Services and Public Safety [2004] NICA 37, 38, 39
[11] ‘Northern Ireland Human Rights Commission to Response to the Women and Equalities Committee Inquiry into Abortion Law in Northern Ireland’ http://www.nihrc.org/uploads/publications/NIHRC_Submission_to_WEC_Inquiry.pdf; Amnesty International ‘Northern Ireland Barriers to Accessing Abortion Services’ https://www.amnesty.org.uk/files/eur_45_0157_2015_northern_ireland_-_barriers_to_accessing_abortion_services_pdf.pdf
[12] Goretti Horgan et al ‘ARK Policy Brief: Developing Policy for a full Reproductive Health Services in NI’ https://www.ark.ac.uk/ARK/sites/default/files/2019-10/policybrief12.pdf
[13] Sally Sheldon, ‘The decriminalisation of abortion: an argument for modernisation’ (2016) 36 Oxford Journal of Legal Studies 334-365.