By Dr Sheelagh McGuinness, Reader in Law and Dr Jane Rooney, Lecturer in Law (University of Bristol Law School)
On 31st March, 2020, The Abortion (Northern Ireland) Regulations 2020 came into force. This is a landmark in reproductive rights in Northern Ireland. Many were sceptical as to whether this day would ever arrive. The regulations represent the culmination of decades of activism across civil society, grassroots and medical organizations, legal representatives, and political actors. They constitute a huge step forward in the protection of the reproductive health of women. However, the scope of protection afforded will depend on how they are interpreted and implemented. In this blog we give an overview of the regulations and highlight some areas of on-going concern.
The New Law
A previous blog provided an overview on the legal reforms that gave rise to these regulations. However, to briefly recap: on 22nd October, 2019, section 9 of the Northern Ireland (Executive Formation etc) Act 2019 (NIEFA) repealed sections 58 and 59 of the Offences Against the Person Act 1861 (the OAPA). In accordance with the OAPA, abortion in Northern Ireland was criminalized subject to an exception carved out in case law where continuance of pregnancy would cause a ‘real and serious risk’ to the pregnant woman’s life or physical health. Section 25 of the Criminal Justice Act (Northern Ireland) 1945 (CJA), which makes it a criminal offence to cause the death of “a child then capable of being born alive”, remained in force (although it has now been amended in the regulations – see Part 8). In addition to repealing sections 58 and 59 of the OAPA, Section 9 of the NIEFA requires that the Secretary of State for Northern Ireland should ensure that “the recommendations in paragraphs 85 and 86 of the [Convention on the Elimination of Discrimination Against Women (CEDAW)] report are implemented in respect of Northern Ireland”. We consider the extent to which this aim has been achieved.
The Grounds
Parts 2 & 3 of the regulations set out the ‘grounds’ for abortion with and without gestational limits respectively.
In Part 2, Regulation 3 allows for abortion without conditionality provided the pregnancy has not exceeded 12 weeks’ gestation. The Explanatory Memorandum emphasizes:
The treatment for either surgical or medical abortion must have commenced on or before 11 weeks and six days’ gestation, but in the case of incomplete or failed abortion, the process can be completed after 12 weeks’ gestation without the need for a separate certification process to occur. (7.8)
Regulation 4 provides for abortion where a pregnancy has not exceeded 24 weeks’ gestation and two registered medical professionals form an opinion in ‘good faith’ that the continuance of pregnancy would involve a risk to the physical or mental health of the woman greater than if the pregnancy were terminated. In assessing whether this ground is met the Explanatory Memorandum states “medical professionals may take into account a woman’s wellbeing, and the woman’s actual or reasonably foreseeable circumstances, including wider social circumstances”. (7.11)
Part 3 sets out instances where an abortion is permitted with no gestational limit. Regulation 5 allows for terminations with no gestational limits in cases of necessity, i.e. where it is “immediately necessary to save the life, or to prevent grave permanent injury to the physical or mental health, of the pregnant woman”. Regulation 6 allows for abortion with no gestational limit where:
(a) the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or
(b) the continuance of the pregnancy would involve risk to the life of the pregnant woman which is greater than if the pregnancy were terminated.
It is notable that there is no expansion on this ground in the Explanatory Memorandum except in relation to ‘good faith’, a point to which we will return. Para 85 (b)(i) of the CEDAW report on abortion in Northern Ireland requires that the UK ensure legislation is put in place for provision of abortion where there is a “[t]hreat to the pregnant woman’s physical or mental health, without conditionality of ‘long-term or permanent’ effects”. The condition of ‘grave permanent injury’ for abortion after 24 weeks’ gestation arguably goes against this stipulation. However, the Explanatory Memorandum suggests that regulations 3-5 are sufficient to discharge CEDAW’s requirement. Regulation 7 permits abortion in case of “severe fetal impairment or fatal foetal abnormality”. As detailed in the Explanatory Memorandum “[t]he absence of abortion services in Northern Ireland in cases of FFA has been one of the driving forces for change to the law in Northern Ireland and has been found to be incompatible with Article 8 ECHR [the right to respect for private and family life]. There have been harrowing cases of women having to travel in distressing circumstances to access abortion services”(7.16).
Personnel & Places
Parts 1 and 4 outline details of the ‘who’ and the ‘where’ of abortion provision in Northern Ireland. Parts 2-4 allow abortions to be performed and certified by a ‘registered medical professional’ which is defined in Regulation 2 as a registered ‘medical practitioner’ (doctor), midwife, or nurse. It is commendable that the regulations are clear that midwives and nurses can perform and certify abortions, something that has been the subject of critical discussion in Great Britain. That the regulations engage a broader range of health professional is particularly welcome given the replication of the unnecessary and bureaucratic requirement that two registered medical professionals must certify abortions under Regulations 4, 6, and 7. However, such a restrictive definition is potentially out of step with the World Health Organization’s statement that:
“Abortion care can be safely provided by any properly trained health-care provider, including midlevel (i.e. non-physician) providers. The term “midlevel providers” in the context of this document refers to a range of non-physician clinicians (e.g. midwives, nurse practitioners, clinical officers, physician assistants, family welfare visitors, and others) who are trained to provide basic clinical procedures related to reproductive health….”
The Explanatory Memorandum justifies the restrictive definition to avoid confusion and ensure those terminating pregnancies are appropriately trained.
Perhaps one of the most topical aspects of the regulations, especially in light of the current global COVID19 crisis, is the detail of where abortions can take place. This is set out in Part 4. As we might expect, the regulations are clear that abortion can be performed in hospitals, clinics, and GP surgeries, and other places as designated. Allowing for a range of places where terminations can take place ensures that services can be commissioned in a manner most appropriate to local area need. However, the controversial aspect here is the limit placed on ‘home use’ in the context of early medical abortion (before the tenth week of gestation) as outlined in regulation 8(2). The regulations are clear that women must be allowed to take misoprostol, the second medication used in early medical abortion (EMA), at home (regulation 8(1)(d)). This is in keeping with recent policy changes in England, Scotland, and Wales. However, places where women may take mifepristone, the first medication used in EMA, is limited (regulation 8(2)(b)). This limitation effectively rules out ‘telemedicine’, i.e. online or phone consultation followed by both sets of pills being posted to the woman, notwithstanding the fact this has been found to meet standards of clinical safety and acceptability. This restriction is particularly controversial given that the regulations will be implemented amidst the global COVID-19 pandemic with concern being expressed that the regulations will effectively end current telemedicine provision and force women to travel to access care. Such travel undermines current guidance on isolation and exposes women, healthcare professionals, and others to unnecessary risk. It is also increasingly difficult to organize given cancellation of flights, limited ferry routes, and lack of accommodation due to hotel closures. The Explanatory Memorandum states:
Regulation 8(3) provides a power of approval for the Department of Health in Northern Ireland to approve the provision of abortion services in places other than those listed in regulation 8(1)(a)-(c) or for the use of specified medicines in a class of place. This will allow the Department of Health flexibility over the provision of services as they develop or in response to particular or unusual circumstances, for example by enabling the Department to approve treatment by independent abortion service providers, including the prescription by independent providers of Misoprostol or Mifepristone for home use, or to approve other places or classes of place for treatment or a particular manner of treatment, as appropriate. (7.22)
Little can be considered more unusual than a global pandemic and it is hoped that Robin Swann and the Department of Health in Northern Ireland will act quickly and decisively to allow home use of mifepristone, thus ensuring that neither women nor health care professionals are exposed to unnecessary risks.
Criminal Offences
As mentioned above, repeal of sections 58 and 59 of the OAPA decriminalized abortion in Northern Ireland to the point of viability as per the CJA (the CJA is amended in Part 8). The new Regulations introduce specific criminal offences as outlined in Parts 5 and 6. It is important to highlight that under the regulations in no circumstances can the pregnant woman be held criminally liable for having an abortion (regulation 11(2)(a)).
Part 5 details the expectations for certification and notification of terminations. Regulation 9 states that in cases of emergency, or prior to 12 weeks’ gestation, one medical professional must certify terminations (regulation 3 and 5), in all other circumstances two professionals are necessary (regulations 4, 6, and 7). Regulation 10 details the requirements to notify the Chief Medical Officer of the termination. Regulations 9(6) and 10(4) provide for an offence where someone “intentionally contravenes” the provisions of these regulations.
Part 6 details the offence of ‘unlawful termination’. This won’t apply to the woman herself, may apply to medical professionals, and will apply to third parties. The phrasing of the Explanatory Memorandum seems to imply that the intention is that this offence is primarily directed at third parties. The Memorandum provides “supply unlawful pills to others” (7.34) and “a person who supplies abortion pills in an unauthorized facility outside of the health and social care system” as examples of when the offence would apply stating that the latter involves “intentional, reckless or persistent” disregard for the regulations (7.38). However, with regard to medical professionals, the memorandum repeatedly attempts to minimize the potential ‘chilling effect’ of criminalization.
It is widely recognized, and acknowledged in the Explanatory Memorandum, that criminal sanctions can have a ‘chilling effect’ on medical practice in relation to abortion. This effect will be heightened in jurisdictions, like Northern Ireland, where prosecutions have in the past been fervently pursued. The Explanatory Memorandum attempts to alleviate any such chilling effect by emphasizing the role of ‘good faith’ with regard to almost every aspect of the regulations. What constitutes ‘good faith’ is not defined in the regulations. However, the Explanatory Memorandum clarifies that good faith will be found where there is no dishonesty or negligence (see 7.11, 7.23, 7.33, 7.36, 7.37). In addition, the note states that in forming an opinion in good faith the professional is not obliged to “ascertain as a matter of fact whether those grounds exist” (7.27) but instead they should trust the information given to them by the woman. Factual error is also not indicative of lack of good faith (7.36, 7.37).
It is worth noting that the assessment of ‘good faith’ for the purposes of bringing a prosecution was subject to scrutiny in Great Britain in 2013. The then Director of Public Prosecutions, Keir Starmer, identified the challenge of proving bad faith, especially given limited medical guidance on this, as a reason not to pursue the prosecution of two doctors ensnared by the Telegraph’s undercover sex selective abortion ‘sting’. Hopefully, given this, medical professionals will be confident in interpreting the guidance in such a way as to facilitate access to abortion care.
Conscientious Objection
Part 7 sets out the protections for those professionals who wish to refuse to provide abortion care. Regulation 12 mirrors section 4 of the Abortion Act 1967 and stipulates that a medical professional is not under a duty to participate in treatment to which they conscientiously object. However, conscientious objection is not permitted when the treatment is necessary to save the life, or to prevent grave permanent injury to the physical or mental health of a pregnant woman (regulation 12(3)). The Explanatory Memorandum states:
The Government considered that broadening the scope beyond ‘participation in treatment’ would have consequences on a practical level and would therefore undermine the effective provision of abortion services in Northern Ireland. (7.40)
This follows the approach affirmed in the Supreme Court decision of Greater Glasgow Health Board v Doogan and another [2014] UKSC 68. It is unfortunate that the regulations do not enshrine an obligation to refer on those professionals who refuse to provide care, although professional practice guidance and employment contracts may contain such an obligation. General Recommendation 24 from CEDAW states:
If health service providers refuse to perform such services based on conscientious objection, measures should be introduced to ensure that women are referred to alternative health providers. [Emphasis added]
In implementing the regulations and establishing services it is absolutely essential that conscientious objection not be allowed to become a barrier to care.
Conclusion
The Regulations are an important and welcome intervention in ensuring the protection of reproductive rights for women and girls in Northern Ireland. How these regulations are interpreted and implemented will be key to the successful provision of abortion care. While there is certainly room for improvement, we have outlined the scope within the regulations for facilitating access to abortion in a human rights vindicating way.
It is the responsibility of the Department of Health in Northern Ireland to implement the new regulations. It has been acknowledged that the COVID-19 pandemic will hinder this. In the interim period, women from Northern Ireland will have to travel to England in order to access necessary care or continue to order pills from online suppliers. For those women forced to order pills online, it is worth emphasizing the point outlined in the Explanatory Memorandum that although “it is an offence to supply unlawful pills to others, women who have taken pills will be able to seek medical treatment without fear of prosecution” (7.34).
For those who are forced to travel the COVID19 pandemic creates additional difficulties and barriers. Many airlines have suspended flights. Travel by ferry takes much longer, for example, Belfast to Liverpool takes about 8 hours. Hotels have been closed meaning there is no overnight accommodation for those who need it. Women who self isolating because their or a family member are vulnerable are being forced to expose themselves and others to unnecessary social contacts. Health care professionals have called on Minister Swann and the Department of Health in Northern Ireland to provide clarification that the regulations permit telephone consultations and to make an order allowing home use of mifepristone. The Explanatory Memorandum provides “Mifepristone for home use” as an example of the sort of approval that is envisaged in Regulation 8(3). It is within the Minister and the Department of Health’s power to facilitate telemedicine for early medical abortion and such an approach is clinically sound. Allowing telemedicine would be in keeping with steps taken in the Republic of Ireland, England, Scotland, and Wales. Failure to facilitate telemedicine for early medical abortion “is contrary to the policy position taken to deliver access to abortion services locally on the ground in Northern Ireland” [Explanatory Memorandum, 7.12]. Action needs to be taken to ensure that women can be provided with care in a safe and dignified manner.