Navigation – Plan du site

AccueilNuméros55Le Royaume-Uni, entre spécificité...Abortion in Northern Ireland: Fro...

Le Royaume-Uni, entre spécificités nationales et inégalités régionales

Abortion in Northern Ireland: From Limbo to Law

L’avortement en Irlande du Nord : des limbes à la loi
Nathalie Sebbane

Résumés

Si l’avortement est désormais dépénalisé au Nord et au Sud de l’île d’Irlande, il n’en demeure pas moins qu’un certain nombre d’obstacles juridiques et non juridiques empêchent les Irlandaises d’accéder gratuitement, légalement et en toute sécurité à des services d’interruption de grossesse. Cet article propose d’examiner l’impact de la gouvernance à niveaux multiples sur la législation relative à l’avortement afin de comprendre comment les divisions historiques, politiques, géographiques, religieuses et idéologiques ont limité les droits des femmes et leur droits humains en termes d’accès à l’autonomie corporelle.
En examinant la relation triangulaire entre l’Angleterre, l’Irlande du Nord et la république d’Irlande, cet article montrera que l’Angleterre a été le principal point de discorde en matière de législation sur l’avortement.

Haut de page

Texte intégral

1Up until 2019, the legal framework regulating abortion in Northern Ireland was a British piece of legislation, The Offences against the Person Act 1861.1 Interestingly, the same legislation also made it a criminal offence in the Republic of Ireland to procure or assist in the procurement of a termination of pregnancy up until 2018. Therefore, on both sides of the border on the island of Ireland, a 19th century British piece of legislation has, until recently, prevented women from accessing abortion and forced thousands of them to travel to the United Kingdom to obtain the medical procedure.

2Abortion in Ireland, North and South, is now decriminalized—at least under certain specific circumstances. Nonetheless, legal and non‑legal obstacles remain, notably in terms of access to services related to terminations of pregnancy. Too many women, whose situation sets them outside the perimeter of the legal framework, are still forced to travel to England to have an abortion.

3Northern Ireland obtained its parliamentary independence in 1921 and the Irish Free State was created in 1922. Two separate entities thenceforth shared the island of Ireland. Northern Ireland and Great‑Britain are politically united but geographically separated, whereas Northern Ireland is politically separated from the Republic of Ireland but historically and geographically united to it. There are therefore two borders between the three historically united entities. Within Northern Ireland itself, historical and political events leading to sectarian violence have enhanced the already fragmented landscape, as Catholics and Protestants have vied for the control of the six counties, fighting along religious, ideological, political and cultural lines to, on the one hand, maintain and protect the union with Great Britain and, on the other hand, seek reunification with the 26 counties in the South.

4The parliamentary autonomy granted to Northern Ireland was repeatedly challenged on account of ethnonational divisions, forcing Westminster to impose direct rule on numerous occasions. As a sub‑state nation, Northern Ireland experienced various degrees of autonomy, from 1921 to the Good Friday Agreement in 1999.

5Devolution implies multi-level governance with provisions devolved to sub-state nations while others (the reserved matters) remain the preserve of the central power. In addition, the power-sharing system implemented by the Good Friday Agreement created another layer of sub-governance within Northern Ireland itself, whereby the two main parties, Sinn Féin and the Democratic Unionist Party, have had to reach consensus and agreement. This has proved very critical on multiple occasions leading to the dysfunction and eventually suspension of the devolved powers.

6For all these reasons, it therefore seems significant to examine the impact of multi-level governance on abortion legislation in order to understand whether and how it has hampered progress and limited women’s and human rights in terms of access to bodily autonomy.

7Equally of interest is an analysis of the triangular dimension between Northern Ireland, the UK and the Republic of Ireland. The long and profound historical ties between the three entities in the way they approached abortion reform and implemented the subsequent legislation call for an examination of the possible crossovers.

8This paper will contend that, at the core of the problematic issues related to abortion in the context of devolution, England has been the focal point of contention.

1. Creating boundaries, fostering divisions

  • 2 Including assault, manslaughter, and other violent crimes.

9From a historical perspective, the UK legislation as regards abortion has, since the 19th century, been of paramount importance to reform in both Northern Ireland and the Republic. The Offences against the Person Act enacted in 1861 in Britain aimed at consolidating and reforming various offenses against the person. While the Act covered a range of criminal offenses,2 its impact on abortion laws in the UK and Ireland has been significant.

10Section 58 and Section 59 of the Offences against the Person Act 1861 criminalized the act of abortion, making it an offense to procure a miscarriage or assist a woman in inducing an abortion. The penalties for violating these provisions were severe, and both the woman seeking an abortion and anyone assisting her could be prosecuted and face imprisonment. Abortion was thus strictly prohibited, with exceptions only if the life of the pregnant woman was at risk. This restrictive legal environment led to a clandestine and often unsafe practice of abortion, as women sought alternative and sometimes dangerous methods to terminate pregnancies.

11The partition of Ireland in 1922 resulted in a fragmented geographical and political landscape where the same island was shared between a sub-state nation composed of 6 counties in the North, forming part of the United Kingdom, while 26 counties in the south formed the Irish Free State.

12By the early 20th century, a process of devolution had thus been set in motion, with Northern Ireland having its own parliament. That process de facto created a sub‑state border beyond which sectarian divisions would progressively mount between the Catholic and Protestant communities, ideologically opposed on the issue of nationalism and unionism, and resulted in informal, yet real, internal boundaries being added to the sub-national one, a situation that would make matters more complicated when it came to reaching a consensus on abortion legislation, amongst other issues.

2. The Abortion Act, 1967: creating asymmetries

13In 1967, the Westminster Parliament passed the Abortion Act,3 providing legal grounds for abortion under specific circumstances, such as the risk to the woman’s physical or mental health. This Act effectively amended the Offences against the Person Act 1861, offering a more compassionate and regulated approach to abortion.

14Even though the provisions of the Act were extended to Scotland and Wales, Northern Ireland remained outside its remit. The Offences against the Person Act was not repealed in the province, nor was it in the Republic of Ireland, for that matter, which created two anomalous legislative, political and social situations that were to have enduring consequences for many decades to come and would constrain thousands of women from both Northern Ireland and the Republic to either resort to clandestine abortions or to travel to England for a medical abortion.

  • 4 “Subject as hereafter in this [section] provided, any person who, with intent to destroy the life o (...)
  • 5 Ibid.

15In Northern Ireland, the Offences against the Person Act was completed in 1945 by the Criminal Justice (Northern Ireland) Act 1945,4 which permitted abortions to be performed solely “in good faith for the purpose only of preserving the life of the mother”.5 However, such provisions were not repealed by the Abortion Act in 1967, leaving the region in a very precarious situation. As Véronique Molinari explains, even though Northern Ireland was granted autonomy from 1921 onwards, Westminster still retained the right to legislate on devolved issues. However, “[o]n no occasion between 1921 and 1967 did Westminster legislate in Northern Ireland on devolved issues. Abortion was no exception” (2020: 81). This lack of legislative initiative went on until the suspension of Stormont in 1974. “The NIA records no debate between 1922 and 1974 with any substantive reference to abortion, and the only references to abortion and NI in Westminster were in the form of questions by backbenchers which were quickly dismissed” (Pearson, 2022: 19). As for the Irish Free State—then Republic of Ireland from 1949 onwards—even though it was now an independent nation-state, no legislator had, so far, attempted to remove the Offences against the Person Act. Therefore, abortion remained criminalized pursuant to a British piece of legislation. Despite what could be perceived as an inconsistent decision in a post‑colonial context, it made sense in the context of the increasingly prominent place and role of the Roman Catholic Church to leave no room for the possibility of introducing a piece of legislation that would relax the restrictive law and allow for terminations of pregnancies. As it was, conservative and “pro‑life” forces became concerned that the Offences against the Person Act might be challenged in the courts. Ireland had joined the EEC in 1973 and the Roe vs Wade ruling was sending ripples throughout the world.

16After a much-heated campaign, which was strongly supported by the Roman Catholic Church, a referendum was held in 1983 which led to the inscription of the 8th amendment into the 1937 constitution, thus guaranteeing that a total ban on abortion was now in place. The right to life, formally protected by the State, now superseded that of the mother. It is worth emphasizing that it was not the result of a political decision but rather a move from a well‑organized campaign mounted by religious and conservative forces from civil society. It nevertheless created divisions in Ireland, both on the political and societal level (Hesketh, 1990).

17Additionally, since the early days of the Irish Free State, several pieces of discriminatory legislation against women had been enacted. The Censorship of Publications Act, 19296 banned works that were considered to be indecent or obscene, newspapers whose content relied too much on crime, and works that promoted the “unnatural” prevention of conception or that advocated abortion.7 In 1935, the Criminal Law (Amendment) Act included an article which prohibited the sale and importation of birth control devices.8

18This legislation was in total contradiction with the principles enounced in the 1922 Constitution of the Irish Free State9 as they increasingly restricted women’s rights and turned women into second class citizens. This status would later be confirmed in the 1937 constitution, which testified that the national narrative that was being written in Ireland emphasized its marked divergence with the former colonial power. The moral order that was established by the joint forces of the state and the Catholic hierarchy was dealing a severe blow to women’s rights (Valiulis, 2019). In Northern Ireland, the political events that unfolded in the 20th century would equally put women’s rights on the backburner while sectarian divisions were growing exponentially. In Northern Ireland, the political events that unfolded in the 20th century would equally put women’s rights on the backburner while sectarian divisions were growing exponentially.

19The second part of this article will examine how political changes that affected the governance of Northern Ireland contributed to making any attempt at amending the existing legislation on abortion or at introducing new legislation extremely difficult, if not impossible. It will also show that the different forms that devolution took from its inception, far from being, as generally, accepted favourable to women’s rights, have limited “centralized efforts to create or protect women’s rights due to ‘veto players’ using the division of authority to obstruct central reforms at sub-state levels” (Moon, Thompson & Whiting, 2019: 731).

3. Fragmented powers

20If abortion has very rarely been a political issue in contemporary Britain, it became extremely politicized in Northern Ireland, where the conflation of devolved, or multi‑level, governance, political instability, and sectarian conflicts have resulted in fragmentation at the level of decision- and policy-making, further delaying any change in favour of women’s rights and bodily autonomy.

21The suspensions of the Northern Irish Parliament, also known as Stormont, during the period from 1973 to 1998 were significant events in the context of the political troubles in Northern Ireland. The suspensions were a response to the escalating violence and political unrest associated with the conflict known as “The Troubles”.

22The first suspension occurred in 1972. In response to the deteriorating security situation and the inability of the Northern Ireland Parliament to address the growing tensions between nationalist and unionist communities, as well as between nationalists and the representatives of British rule in Northern Ireland, the British government, led by Prime Minister Edward Heath, suspended the Stormont government and imposed direct rule from Westminster on 24 March 1972. This marked the end of the devolved government in Northern Ireland. Decision-making henceforth returned to Westminster.

  • 10 Notably, The Sunningdale Agreement (1973), and the Anglo-Irish Agreement (1985).

23During that period, several attempts were made to find political solutions to the Northern Ireland issue. Various initiatives and talks were held during the 1970s and early 1980s,10 but achieving consensus among the divided communities proved challenging.

24The Good Friday Agreement was reached on 10 April 1998. This landmark peace agreement included provisions for the re‑establishment of devolved government in Northern Ireland. The Northern Ireland Assembly was subsequently elected, and power-sharing arrangements were put in place, thus adding an extra site of decision-making to the existing devolved institutions in Scotland and Wales.

  • 11 11 February – 30 May 2000; 10 August 2001 (24‑hour suspension); 22 September 2001 (24‑hour suspensi (...)

25Due to issues related to power-sharing, the Northern Ireland Assembly was to be further suspended on five different occasions.11

26These suspensions were indicative of the challenges and complexities associated with finding a political solution to the conflict in Northern Ireland, despite the Good Friday Agreement of 1998 playing a crucial role in creating a framework for a more inclusive and power-sharing government, which aimed to address the deep‑seated political and sectarian divisions in the region. Two referendums on the Good Friday Agreement had taken place on 22 May 1998. The vote held in Northern Ireland was meant to seek approval of the Agreement, while a referendum in the Republic of Ireland concerned the necessary amendment to the country’s constitution so that it would relinquish its claim over Northern Ireland, thereby acknowledging the new principle of consent, whereby there would be no change without the consent of the majority that would be tested through referendum (Mac Ginty, Wilford, Dowds & Robinson, 2001). The success of the Agreement relied largely on its tripartite dimension involving Belfast, London and Dublin, with the help of the USA. However, while this tripartite dimension was not to bring any major legislative changes as regards abortion for another ten years, some compelling correlations between Northern Ireland and the Republic are worth addressing.

27From 2000 onwards, the contentious matter of abortion ended up before the courts on several occasions, and also divided parties in the Stormont Assembly without, however, resulting in any significant changes due to the fragmented nature of policy‑making sites. Indeed, abortion had remained a reserved power until 2010 when, pursuant to the Hillsborough Agreement,12 it was finally devolved to Northern Ireland.

28Following that date, the Assembly staunchly and repeatedly opposed any liberalization of the law, thus contributing to maintaining a situation in which Northern Irish women did not enjoy the same reproductive rights as citizens in the rest of the UK because the devolution of abortion was part of wider policing and justice powers (Molinari, 2020: 81). This transfer of powers in a context of multilevel governance meant that Westminster would not interfere in the issue of abortion, or take any legislative initiative.

29Examining the abortion policy in the post‑devolution UK reveals the challenges posed to gender equality by multiple governance levels (Mac Ginty, Wilford, Dowds & Robinson, 2001). With a lack of institutional commitment and low political priority given to abortion, both central and devolved bodies neglect the issue. This results in a complex situation with varying legal positions on abortion across the UK, including what amounted to a near ban in Northern Ireland. In similar contexts, when changes occur, it is sporadically, without a deliberate party or institutional approach which, ultimately, raises concerns about potential setbacks. As Moon, Thompson and Whiting (2019) explain, this critical assessment prompts feminists to consider the impact of political decentralization on women’s rights debates, policies, and advocacy efforts.

30This fragmentation of policy-making and/or initiative has also contributed to depoliticizing the issue in the UK while re‑politicizing it at the level of sub‑state nations. “[t]he devolved system encourages a depoliticising language of national distinction and legislative competencies to explain policy differences, rather than justifications based upon consistent, universalist positions on the issue of women’s rights” (Moon, Thompson & Whiting, 2019: 729). Despite demands for LGBT rights and women’s reproductive rights, not all citizens of the devolved nations, or their political leaders, endorse such views. This is considered particularly so in nations emerging from deep‑seated and violent ethnonational conflict. In such societies, not only is ethnonationalism profoundly intertwined with both gender and sexuality, but also, since the nation is symbolically imagined as a heteronormative and patriarchal family unit, it both reproduces and sanctions gender differences and sexual inequalities (Hayes & Nagle, 2018).

31Examining the relations between ethnonationalism, gender, and sexuality, Hayes and Nagle contend that the doctrine of ethnonationalism asserts that the boundaries of a nation-state should align with a specific ethnic group. Ethnonationalism is typically associated with the ethnic rather than civic variant. The conflict in Northern Ireland is often described as a prolonged disagreement centred around two conflicting ethnonational identities: those identifying as British, seeking to maintain the union between Northern Ireland and Great Britain, and those identifying as Irish, aspiring to unite the two parts of the island of Ireland. Beyond sub‑state boundaries, additional boundaries further complicate the possibility of a consensus.

In 2007, for example, all the major parties, including Sinn Féin, supported a motion proposed by the DUP to oppose any extension of the 1967 Abortion Act to Northern Ireland. Moreover, despite a Belfast High Court ruling in November 2015 that the abortion ban breached human rights, in February 2016 members of the Northern Ireland Assembly voted against an amendment to a Justice Bill to permit abortion in cases of fatal foetal abnormality, rape and incest. (Hayes & Nagles, 2019: 5)

32While the DUP voted against the amendment, Sinn Féin endorsed it. “Despite both the rhetoric of the Agreement and Sinn Féin’s stated support for gender equality and women’s rights, many party members remain firmly opposed to a pro‑choice position, fearing that it would result in a backlash from their more conservative and religious voters” (Hayes & Nagle, 2018: 466).

33The pressure from conservative and religious groups is also, essentially, the reason why abortion remained unconstitutional in the Republic of Ireland until 2018, despite piecemeal and progressive changes to the legislation.

4. Abortion legislation in the Republic of Ireland

34South of the border, the instance of Attorney General v. X,13 where a 14‑year-old girl who had become pregnant following a rape was allowed to inquire about abortion services abroad and travel outside Ireland for the procedure, had subsequent implications on the Thirteenth and Fourteenth Amendments of the Constitution of Ireland. These amendments, which established the right to information regarding abortion and the right to travel, were both confirmed in a 1992 referendum and officially enacted on 23 December 1992. For another ten years, hundreds of Irish women still had to travel to England for a termination. Ireland had thus chosen to export its problem to England rather than legislate.

  • 14 Patient Safety Investigation Report published by Health Information and Quality Authority (Savita H (...)

35Ten years later, following the tragic death of Savita Halappanavar in October 2012 due to septicaemia at 17 weeks of gestation, after she was repeatedly refused a termination of pregnancy while doctors had made it clear that the pregnancy could not go through, the Health Information and Quality Authority Investigation concluded that Savita was unjustly denied fundamental health treatments, and that her death could have been prevented.14 Subsequently, less than a year later, on 31 July 2013, the Protection of Life during Pregnancy Act was enacted, granting Irish women the right to terminate a pregnancy if their lives was at risk or if there was a threat of suicide. Notably, this legislation did not extend to cases involving rape, incest, or fatal foetal abnormalities. The law empowered 25 hospitals across Ireland to perform terminations of pregnancy in life-threatening situations and simultaneously revoked Sections 58 and 59 of the Offences against the Person Act.

36In Northern Ireland, it was also the case of a woman who had been unable to obtain a termination of pregnancy that prompted reform.

37A year after Savita’s untimely death, Northern Irish citizen Sarah Ewart who had been denied an abortion in spite of doctors saying that her baby would not survive, had gone to England for an abortion. At the time, as was the case in the Republic, fatal foetal abnormalities were not grounds for abortion according to the law in Northern Ireland. As there was no risk to her own life, she had been told that the pregnancy would continue until she miscarried. She would later take her case to court.

38What these two stories reveal is that North and South of the border, the legislator was far less concerned with the health (physical and/or mental) of the mother than with preserving a status quo in order to prevent creating political divisions. Yet, both tragic situations would eventually set in motion a movement to change a legislation that political forces, on both sides of the border, had neglected to address.

5. The way to reform

  • 15 “Stormont collapsed in January 2017 when the two biggest parties—the Democratic Unionist Party (DUP (...)

39In Northern Ireland, it was a private Member’s Bill introduced by Stella Creasy in 2017, while the Northern Ireland Assembly was suspended,15 that would allow Northern Irish women to have their abortion costs covered by the NHS if they went to Britain. However, Belfast’s Court of Appeal ruled that Northern Ireland’s abortion laws were a matter for the Stormont Assembly. This testifies to how power‑play in the context of multi‑level governance can be detrimental to women’s rights. The repeated lack of consensus on the decision-making sites have delayed and limited any possible progress on the issue of bodily autonomy.

  • 16 The government’s decision to vote to hold a referendum was prompted by the conclusions of a Citizen (...)
  • 17 Yes 66% vs NO 34% with a 64% turnout.

40In the Republic of Ireland, in the wake of the referendum on same-sex marriage in 2015, and in a complete reversal of what had happened in 1983, pro‑choice activists mounted a campaign that reached beyond age, gender and geographical divisions,16 resulting in a majority of Irish citizens voting Yes to repeal the 8th Amendment on 25 May 2018.17

  • 18 Fionola Meredith, “Abortion Referendum Aftermath: Is Northern Ireland Next?”, The Irish Times, 9 Ju (...)
  • 19 Ibid.
  • 20 There is no codified constitution in the UK nor is there a Bill of Rights.

41A few days after the vote, The Irish Times published an article entitled: “Abortion Referendum Aftermath: Is Northern Ireland Next?”18 The decisive vote to repeal the 8th Amendment of the constitution sent a seismic jolt through Northern Ireland, where abortion remained illegal in almost all cases. It intensified public conversation about the issue, inspiring pro‑choice activists to renew their demands for a change in the law. They felt that the injustice of the Northern Irish situation had to be addressed. For Goretti Horgan, of Alliance for Choice, “[t]here [was] a momentum, and a sense of injustice that the six counties [were] now the only part of these islands where a woman [did] not have autonomy over her own body”.19 Nonetheless, it was clear that the situation in the North could not be addressed in a similar fashion. A referendum would not be binding since there was no “no constitutional barrier to the provision of reproductive right”.20 Therefore, the two places where significant changes could happen were, on the one hand, the courts, provided individual cases were brought up, and the House of Commons. This situation further highlights what can be considered as the Northern Irish exception when it comes to abortion legislation.

42In June 2018, the UK Supreme Court had ruled in the case of the Northern Ireland Human Rights Commission (NIHRC) v. the Secretary of State for Health that Northern Ireland’s abortion laws were incompatible with human rights in cases of fatal foetal abnormalities, rape, and incest. The court concluded that the laws violated Article 8 of the European Convention on Human Rights, which addresses the right to respect for private and family life.21 This ruling was a pivotal moment that placed pressure on the UK government to address the legal and human rights issues related to abortion in Northern Ireland.

  • 22 In the High Court of Justice in Northern Ireland, Queen’s Bench Division (Judicial Review) in the M (...)

43One individual case was indeed brought before the court. In January 2019, Sarah Ewart began a High Court challenge in her own name, following the failed Supreme Court Case by the Northern Ireland Human Rights Commission to change abortion laws. The High Court eventually ruled in her favour.22 In July 2019, while Stormont was suspended, MPs at Westminster backed an amendment tabled by Labour MP Stella Creasy to decriminalize abortion in Northern Ireland. It was supported by 332 votes to 99. This resulted in an ultimatum according to which if devolution was not restored by 21 October, Westminster would start putting things in motion for significant changes to abortion laws. Naturally, this was perceived as an inappropriate intervention by Westminster in a context where abortion was a devolved matter. But as Stormont was not restored in due time, the UK Parliament passed the Northern Ireland (Executive Formation) Act in July 2019. Abortion was thus decriminalized in Northern Ireland in very specific circumstances. It was a devolved matter but Stormont was suspended and legislation once again originated from the UK.

44It should have been a matter for Northern Ireland to address but in view of the political situation, notably with the DUP refusing the Brexit deal, it was left to the central authority to act.

45This naturally questions the status of devolution in the UK, and notably its asymmetrical nature, in a context where the three sub-state nations do not have the same structures and powers. Between Northern Ireland’s precarious deal and Scotland’s increasing demands for independence, the issues of regional inequalities are more and more blatant. If the power-sharing executive had not collapsed, there is no indication that abortion legislation would have progressed.

6. Remaining obstacles

46As Calkin and Berny (2012: 5) explain, reforming restrictive abortion laws constitutes an initial step towards giving free, safe and legal access to termination, but even in jurisdictions with legal frameworks permitting safe abortion, numerous obstacles hinder individuals’ access to these services. Several factors, beyond legal constraints, can limit abortion availability, such as inadequate health systems, limited services in rural areas, inadequate transportation infrastructure, lack of supplies, insufficient awareness and information about available services, costs, absence of insurance coverage, anti‑abortion harassment, administrative obstacles like waiting periods and the persisting stigma associated with abortion. These non‑legal barriers are intricate and context-specific, intertwined with the legal framework for abortion in a given country and influenced by various external factors. They contribute to the perpetuation of “medical tourism” and inequalities.

47We have demonstrated that the former abortion regimes of Ireland or Northern Ireland could not be envisaged without understanding their relationship to England’s abortion system. Similarly, despite their recent reforms, abortion regimes in Ireland and Northern Ireland today continue to be deeply connected to English abortion infrastructure, as the last part of this paper will establish, emphasizing the effects and impact of the multi-governance system on access to abortion services.

48Abortion is an issue that is devolved to the Northern Ireland assembly at Stormont, but the assembly did not sit for nearly three years since the power-sharing arrangement between the Democratic Unionist Party and Sinn Féin collapsed. It was restored in early February 2024. Section 9 of the Northern Ireland (Executive Formation etc.) Act 201923 had put the UK government under a duty to set up a framework for services by 31 March 2020. However, in January 2024, the Northern Ireland Health Minister stated that the 2020 regulations do not compel the NI Executive / Health and Social Care Board to provide abortion services.24

  • 25 Ibid.

Early in 2021, Northern Ireland Human Rights Commission (NIHRC) announced that it was taking legal action against the Secretary of State for Northern Ireland, on the grounds that he had failed to ensure that women are provided with abortion and post abortion care in public health facilities in Northern Ireland. In the same claim, the NIHRC also challenged that the Northern Ireland Executive Committee and NI Minister of Health had failed to agree to commission and fund abortion and post abortion care in Northern Ireland.25

49Following multiple failed attempts to have the services put in place, the Abortion (Northern Ireland) Regulations 2022 was eventually introduced on 19 May 2022, mandating the Northern Ireland Department of Health to commission and fund abortion services, independent of the approval or discussion by the Northern Ireland Executive Committee. These regulations empower the Northern Ireland Secretary to intervene directly to ensure the implementation of services. In October 2022, the Northern Ireland Secretary announced the UK Government’s intervention in commissioning abortion services, citing the inaction of the Northern Ireland Department of Health. A formal directive from the Secretary of State to the Department of Health was issued in December 2022.

50Beyond the political divisions, the abortion issue has also, naturally, opposed pro‑life and pro‑choice activists.

51A judicial review was initiated against the 2021 Regulations and Directions by the Society for the Protection of Unborn Children (SPUC). The case, heard at Belfast High Court in October 2021, resulted in Mr Justice Colton deeming both the 2021 Regulations and the 2021 Directions lawful, dismissing the SPUC’s challenge. Subsequently, the SPUC brought the case to the Court of Appeal, with hearings taking place in November 2022 and January 2023.

  • 26 Amnesty International, “Abortion Decriminalised in Northern Ireland”, <www.amnesty.org.uk/abortion- (...)
  • 27 Rory Carroll, “Abortion Services in Northern Ireland Almost Nonexistent Despite Legalization”, Theg (...)
  • 28 Ibid.

52This move infuriated pro‑choice and human rights activists, further stressing the multiple levels of resistance in the region. Amnesty International UK reported that 4 years after decriminalization, commissioned abortion services are still not set up in the region.26 Similarly, The Guardian reported in May 2022 that abortion services in Northern Ireland were almost non‑existent despite legalization.27 “Despite securing decriminalisation and the overturning of our near‑total abortion ban, we are still waiting for commissioned services to be established and for this healthcare to be accessible to all who need it”, said Grainne Teggart, Amnesty International’s campaigns manager for Northern Ireland. “We have a postcode lottery for access to abortion provision and the services that are in place remain in a fragile state.”28

53The major political and institutional obstacle remaining in the early months of 2024 is the lack of ownership of the issue, and the continuous confrontation between Westminster and the Northern Irish institutions. Despite the multiple ultimatums posed by the British legislator, Northern Ireland did not implement the regulations that would allow women to access functioning services. For Maeve O’Brien, a doctor and activist with Alliance for Choice in Derry, the UK government should have intervened months ago when it was obvious the Stormont executive had no intention of commissioning services. Indeed, the absence of regulations constitutes a serious breach of human rights that the UK should address.

  • 29 From 5 January 2021, the South East Health and Social Care Trust ceased to provide a service as the (...)

54Until services are commissioned, the task of providing early medical abortion services has fallen to Northern Ireland’s five local Health and Social Care Trusts. Since 31 March 2020, terminations have been legalised in Northern Ireland in a number of circumstances, including under any circumstances by a registered doctor, nurse or midwife up to 12 weeks and where there is a risk to physical or mental health in the opinion of two registered medical professionals up to 24 weeks. However, two of the local health and social Trusts have had to suspend their services for lack of funding.29

55The primary concerns are that the absence of a department-supported approach, termination services in Northern Ireland are uneven. The Westminster regulations are not being fully put into practice, limiting services to an early medical abortion service that has experienced intermittent suspension in several health and social care trusts. This situation has led to numerous women, depending on their circumstances and location in Northern Ireland, still having to travel to other regions in the UK and Ireland or resort to unregulated services.

7. Conclusion

  • 30 The 2022 Northern Ireland Assembly election was held on 5 May 2022 and returned a majority of 27 Si (...)

56Abortion has long been a contentious and politicised issue in Northern Ireland. There still is a deep polarisation between pro- and anti- abortion sides, alongside the polarisation existing within the Northern Ireland Assembly now led by Sinn Féin,30 which recently reversed its stance on abortion to support the new regulations, and the anti-abortion Democratic Unionist Party. The fragmented nature of the decision-making process in the province coupled with ideological divisions have been hampering the implementation of the law.

57Medical tourism thus remains the only option for many women despite decriminalization. This is in breach of Article 8 of the European Convention on Human Rights, which protects the right to private and family life.

Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well‑being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.31

58In 2021,32 there were 613 abortions to women recorded as residing outside England and Wales, a decrease from 943 in 2020. Most non‑residents came from Northern Ireland. There were 161 abortions for women from Northern Ireland, a significant decrease from the 371 in 2020. Current levels remain substantially lower than the peak of 1,855 Northern Ireland resident abortions in 1990. This tends to show that despite decriminalisation, abortion services remain limited.

  • 33 “Jennifer Horgan: Yes Vote Would Recognise Care as Beating Heart in Body of Our State”, NWCI blog, (...)

59Similar obstacles and impediments also remain in the Republic of Ireland despite the Health (Regulation of Termination of Pregnancy) Act 2018. Obstacles prevent many women from accessing a free, safe and legal termination: the three‑day mandatory waiting period, which reduces the 12‑week limit to 11 weeks and 5 days; the long and complicated diagnosis of fatal foetal abnormalities and the conscientious objection clause all contribute to an uneven geographical distribution of abortion services, forcing many women to travel to the UK for a termination. At least 860 women have travelled from Ireland to the UK to access abortion since the Eighth Amendment was repealed in 2018. Statistics released by the UK Department of Health and Social Care show that 85 women gave Irish addresses when getting terminations in England and Wales in the first half of 2022.33 It fell to Westminster to vote on the legislation just as it had voted, back in 1861, to criminalize terminations of pregnancies. If research on Devolution generally concludes that it is positive for women, it has not been the case in Northern Ireland where the Assembly has historically had a low representation of women and a highly masculinized and sectarian form of politics. In this context, its attitude to abortion has either been silence or sheer obstruction. For Pierson, “[p]ower-sharing, in the form of consociationalism, and its prioritization of ethno-national identity has been documented as creating an environment which deprioritizes gender issues (or any issues which do not directly correspond to ethno-nationalism)” (2022: 15).

60The combination of devolution and power-sharing in the region has therefore been a major obstacle to any progress in the legislation in favour of abortion. Multiple sites and levels of decision and policy-making have delayed or prevented women from availing of their human rights. England and Westminster have remained a central location when it comes to abortion. While it was criminalised, women from both Northern Ireland and the Republic went to England for a termination and (too) many still do because the current legislation limits free, safe and egal abortion to specific circumstances. Moreover, it is Westminster that is still expected to lift the non‑legal obstacles to abortion that still remain in the region, such as access to proper and functioning services.

61The 2018 referendum in Republic of Ireland has undoubtedly played a role in encouraging pro-choice activists to push the agenda for abortion, but the move came from a British MP, not a Northern Irish politician.

62The restoration of the Northern Ireland Assembly and Executive could unlock years of stalemate and possibly accelerate the setting up of proper abortion services. It could also push forward the reunification agenda, as Michelle O’Neill, the Sinn Féin leader in Northern Ireland, is expected to take the role of First minister if the executive is restored. A Sinn Féin woman Prime minister could have a significant influence and part to play in giving women their human right to free, safe and legal abortion.

Haut de page

Bibliographie

Calkin Sydney & Berny Ella (2021), “Legal and Non-Legal Barriers to Abortion in Ireland and the United Kingdom”, Medicine Access @ Point of Care, 5, <https://0-doi-org.catalogue.libraries.london.ac.uk/10.1177/23992026211040023>.

Hayes Bernadette C. & Nagles John (2019), “Ethnonationalism and Attitudes Towards Same-Sex Marriage and Abortion in Northern Ireland”, International Political Science Review, 40(4), 455–469, <https://0-doi-org.catalogue.libraries.london.ac.uk/10.1177/0192512118775832>.

Hesketh Tom (1990), The Second Partitioning of Ireland? The abortion referendum of 1983, Dun Laoghaire, Co. Dublin: Brandsma Books.

Mac Ginty Roger, Wilford Rick, Dowds Lizanne & Robinson Gillian (2001), “Consenting Adults: The Principle of Consent and Northern Ireland’s Constitutional Future”, Government and Opposition, 36(4), 472–492.

Molinari Véronique (2020), “The Northern Irish Assembly and the Abortion Issue, 1967–2017”, Études irlandaises, 45(2), 77–99, <https://0-doi-org.catalogue.libraries.london.ac.uk/10.4000/etudesirlandaises.10202>.

Moon David S., Thompson Jennifer & Whiting Sophie (2019), “Lost in the Process? The Impact of Devolution on Abortion Law in the United Kingdom”, The British Journal of Politics and International Relations, 21(4), 728–745, <https://0-doi-org.catalogue.libraries.london.ac.uk/10.1177/1369148119857591>.

Pierson Claire (2022), “Power-Sharing and Patriarchy: An Analysis of the Role of the Northern Ireland Assembly in Abortion Law Reform”, F. Bloomer & E. Campbell (eds), Decriminalizing Abortion in Northern Ireland Legislation and Protest, London: Bloomsbury Academic.

Valiulis Maryann Gianallena (2019), The Making of Inequality: Women, Power and Gender Ideology in the Irish Free State, 1922–1937, Dublin: Four Courts Press.

Haut de page

Notes

1 Offences against the Persons Act 1861, <www.legislation.gov.uk/ukpga/Vict/24-25/100/contents> (5 January 2024).

2 Including assault, manslaughter, and other violent crimes.

3 Abortion Act 1967, <https://www.legislation.gov.uk/ukpga/1967/87/contents> (20 January 2024).

4 “Subject as hereafter in this [section] provided, any person who, with intent to destroy the life of a child then capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit, of child destruction, and shall be liable on conviction thereof on indictment to penal servitude for life: Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother” (Criminal Justice Act (Northern Ireland) 1945, section 25, <www.legislation.gov.uk/apni/1945/15/section/25[…]> [25 January 2024]).

5 Ibid.

6 Censorship of Publications Act, 1929, <www.irishstatutebook.ie/eli/1929/act/21/enacted/en/html> (21 December 2023).

7 Censorship of Publications Act, 1929, <www.irishstatutebook.ie/eli/1929/act/21/enacted/en/print> (21 December 2023).

8 Criminal Law Amendment Act (1935), article 17, <www.oireachtas.ie/en/bills/bill/1934/31/?tab=bill-text> (16 March 2024).

9 Constitution of the Irish Free State (Saorstát Eireann) Act, 1922, <www.irishstatutebook.ie/eli/1922/act/1/enacted/en/print.html> (22 December 2023). The text provided men and women equal rights to citizenship and the right to vote “without distinction of sex”.

10 Notably, The Sunningdale Agreement (1973), and the Anglo-Irish Agreement (1985).

11 11 February – 30 May 2000; 10 August 2001 (24‑hour suspension); 22 September 2001 (24‑hour suspension); 14 October 2002 – 7 May 2007 and 9 January 2017 – 11 January 2020.

12 <https://assets.publishing.service.gov.uk/media/5a7b71a0e5274a34770ebbc0/agreement_at_hillsborough_castle_5_february_2010.pdf> (10 January 2024).

13 A.G. v. X [1992] IESC 1; [1992] 1 IR 1 (5th March, 1992), <www.globalhealthrights.org/[…]1992_SC_AttorneyGeneral-v-X.pdf> (27 December 2023).

14 Patient Safety Investigation Report published by Health Information and Quality Authority (Savita Halappanavar), <www.hiqa.ie/hiqa-news-updates/patient-safety-investigation-report-published-health-information-and-quality> (16 March 2024).

15 “Stormont collapsed in January 2017 when the two biggest parties—the Democratic Unionist Party (DUP) and nationalist party Sinn Féin—split in a bitter row over the DUP’s handling of a green energy scandal” (“Stormont: What Is It and Why Did Power-Sharing Collapse in Northern Ireland?”, BBC, <www.bbc.com/news/uk-northern-ireland-politics-50822912> [19 March 2024]).

16 The government’s decision to vote to hold a referendum was prompted by the conclusions of a Citizen’s Assembly that had ranked repealing the 8th as a top priority.

17 Yes 66% vs NO 34% with a 64% turnout.

18 Fionola Meredith, “Abortion Referendum Aftermath: Is Northern Ireland Next?”, The Irish Times, 9 June 2018, <www.irishtimes.com/news/social-affairs/abortion-referendum-aftermath-is-northern-ireland-next-1.3522667> (27 January 2024).

19 Ibid.

20 There is no codified constitution in the UK nor is there a Bill of Rights.

21 European Convention on Human Rights – Article 8, <https://fra.europa.eu/en/law-reference/european-convention-human-rights-article-8[…]> (17 March 2024).

22 In the High Court of Justice in Northern Ireland, Queen’s Bench Division (Judicial Review) in the Matter of an Application by Sarah Jane Ewart for Judicial Review, <www.judiciaryni.uk/files/judiciaryni/decisions/Ewart%27s%20%28Sarah%20Jane%29%20Application_0.pdf> (27 January 2024).

23 Northern Ireland (Executive Formation etc.) Act 2019, <www.legislation.gov.uk/ukpga/2019/22/enacted - section-9-1> (19 March 2024).

24 Abortion in Northern Ireland: Recent Changes to the Legal Framework, <https://commonslibrary.parliament.uk/research-briefings/cbp-8909/> (28 January 2024).

25 Ibid.

26 Amnesty International, “Abortion Decriminalised in Northern Ireland”, <www.amnesty.org.uk/abortion-rights-northern-ireland-timeline - :~:text=In October 2019 abortion decriminalised,effect on 31 March 2020> (3 April 2024).

27 Rory Carroll, “Abortion Services in Northern Ireland Almost Nonexistent Despite Legalization”, Theguardian.com, 4 May 2022, <www.theguardian.com/world/2022/may/04/abortion-services-in-northern-ireland-almost-nonexistent-despite-legalisation> (3 April 2024).

28 Ibid.

29 From 5 January 2021, the South East Health and Social Care Trust ceased to provide a service as the only clinician providing the service went on maternity leave. The service was eventually restored in early February 2021. From 23 April 2021, the Western Health and Social Care Trust suspended its early medical abortion service until further notice, June 2021 Fact Sheet: Human Rights Commission Legal Action on Lack of Abortion Services in NI, NIHRC.

30 The 2022 Northern Ireland Assembly election was held on 5 May 2022 and returned a majority of 27 Sinn Féin MLAs against 25 for the DUP and 17 for Alliance.

31 European Convention on Human Rights, <www.echr.coe.int/documents/d/echr/convention_ENG> (17 March 2024).

32 Most recent figures to this date: <www.gov.uk/government/statistics/abortion-statistics-for-england-and-wales-2021/abortion-statistics-england-and-wales-2021> (3 April 2024).

33 “Jennifer Horgan: Yes Vote Would Recognise Care as Beating Heart in Body of Our State”, NWCI blog, <https://www.nwci.ie/learn/blog-article/orla_oconnor_why_are_so_many_irish_women_still_travelling_to_the_uk_for_abortion> (29 January 2024).

Haut de page

Pour citer cet article

Référence électronique

Nathalie Sebbane, « Abortion in Northern Ireland: From Limbo to Law »ILCEA [En ligne], 55 | 2024, mis en ligne le 26 mai 2024, consulté le 18 juin 2024. URL : http://0-journals-openedition-org.catalogue.libraries.london.ac.uk/ilcea/20230 ; DOI : https://0-doi-org.catalogue.libraries.london.ac.uk/10.4000/11pri

Haut de page

Auteur

Nathalie Sebbane

Université Sorbonne Nouvelle

Haut de page

Droits d’auteur

CC-BY-SA-4.0

Le texte seul est utilisable sous licence CC BY-SA 4.0. Les autres éléments (illustrations, fichiers annexes importés) sont « Tous droits réservés », sauf mention contraire.

Haut de page
Rechercher dans OpenEdition Search

Vous allez être redirigé vers OpenEdition Search