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A hallmark of a good conversation is being factually accurate about the topic you are discussing. And in conversations about abortion in Ireland, that principle most definitely applies. 

Following on from our previous explainer post about the law on abortion in the Republic of Ireland, this post aims to explain the precise legal situation up north. 

A brief history…

Historically, abortion was prohibited in Northern Ireland by legislation. Sections 58 & 59 of the Offences Against the Person Act 1861 made it a crime to “procure a miscarriage”. This law was passed by the Houses of Parliament at Westminster, and applied throughout the UK and Ireland. 

Also of relevance was the Criminal Justice Act (Northern Ireland) 1945. This piece of legislation was passed by the Paliament of Northern Ireland, and made an exception to the crime of “child destruction” where an abortion was carried out “in good faith for the purpose only of preserving the life of the mother”. This Act has now been amended to exempt a women and doctor who procure an abortion under the new Regulations. 

The landmark 1967 Abortion Act (which legalised the procedure in England, Wales and Scotland) was never extended beyond those jurisdictions. 

When the Parliament of Northern Ireland was suspended in 1972, the north was governed by “direct rule” from Westminster. It was only in 2010 that the reconstituted NI Assembly was given authority to make its own abortion laws (following the devolution of justice and policing matters). Since 2010, the NI Assembly emphatically rejected any attempt to make changes to the region’s abortion laws. In 2016, a cross party majority rejected a change in the law. By 59 to 40 votes MLAs (politicians) rejected amendments to permit abortions for so called fatal foetal abnormalities, and by 64 to 30 votes rejected amendments to permit abortions following rape. 

In recent years, the north came under tremendous pressure to change its abortion laws, not least from politicians, Amnestey International, the NI Human Rights Commission and the UN’s Committee on the Elimination of Discrimination against Women. (For our view as to why we believe that the opinion of various UN committees when it comes to abortion is both wrong and not-binding, see our posts about abortion and the UN here, here and here).

Numerous legal challenges in recent years also paved the way for the seismic regulatory and legislative changes which occurred in 2019. 

The NI High Court and UK Supreme Court both found that aspects of the existing abortion laws breached the European Convention on Human Rights (ECHR). However, the Supreme Court held that the NI Human Rights Commission did not have the standing (i.e. legal ability) to bring the challenge against the abortion laws in question, but curiously went on to express views on those laws anyway. A majority found the bans on abortion in circumstances of fatal foetal abnormality and rape to be incompatible with Article 8 of the the ECHR. Interestingly, the 7 judges unanimously held that the lack of abortion for pre-born children with serious disabilities to be compatible with the Convention.

Sarah Ewart, a litigant with standing then took a similar case in her own name, and the High Court in Belfast found in her favour

However, all these court rulings would become somewhat obsolete in 2019, as political developments would intervene. As we noted in a previous post on the north’s abortion laws, abortion became legal via legislation and regulation from Westminster:  

“there was no functioning Assembly for three years (2017-20). Thus, the Northern Ireland (Executive Formation etc) Act 2019, was passed by the UK Parliament in Westminster for the primary purpose of extending the powers of the Northern Ireland Secretary of State. 

Significantly, pro-choice Labour Party MP Stella Creasy successfully proposed an amendment to this Northern Ireland Act as it was going through the Westminster Parliament. The amendment (a new section 9) meant that the 2019 Act would decriminalise abortion in the north (by repealing the Offences Against the Person Act 1861) if there was no functioning NI Assembly by 21 October 2019.  The Assembly was not functioning by that date, and abortion was largely decriminalised then.

Additionally, Creasy’s amendment also required that the Secretary of State for Northern Ireland introduce regulations to govern the provision of abortion in the north by 31 March 2020.”

As we noted at the time, the process by which these regulations were created was very controversial: 

“–In the public consultation ahead of creating the regulations, 79% of all respondents opposed any change to the law in Northern Ireland. 

–The Attorney General for Northern Ireland, John Larkin QC, believes that the Secretary of State acted beyond his powers in introducing these regulations.  

–A House of Lords report had criticised the way in which these regulations were formed. 

The regulations were announced on 25 March 2020, and have been in operation since 31 March 2020. They were replaced by virtually identical provisions in June 2020, and it is these regulations which govern abortion in NI. We will now discuss these below.

The Abortion (Northern Ireland) (No. 2) Regulations 2020

These Regulations contain 29 distinct regulations, and there are 5 grounds under which abortion is legally available.

Regulation 3 – permits abortion for any reason so long as “the pregnancy has not exceeded its 12th week.” The definition of 12 weeks stems from when a “registered medical professional is of the opinion, formed in good faith” that it is so. 

Regulation 4 – permits abortion where continuing the pregnancy would create a “risk of injury to the physical or mental health of the pregnant woman which is greater than if the pregnancy were terminated”, if 2 registered medical professionals are “of the opinion, formed in good faith” that this would be so. The gestational limit is 24 weeks for this kind of abortion. 

(It is worth noting here that the conditions required by this ground are always met by a number of medical conditions. For example, pregnant women are at increased risk of deep vein thrombosis compared to women who are not pregnant. Therefore this is basically a pointless bar to have to clear because you clear it simply by being pregnant. Thus this provision, which is based on the virtually identical one in section 1(1)(a) of the 1967 Abortion Act, is a great example of politicians thinking they are creating restrictive laws, but as the situation in England and Wales has shown, it turns out that the restrictions were essentially non-existent.)

Regulation 5 – permits abortion where a registered medical professional is of the opionion formed in good faith that “termination is immediately necessary to save the life, or to prevent grave permanent injury to the physical or mental health, of the pregnant woman. There is no gestational limit to this kind of abortion. 

Regulation 6 – if 2 registered medical professionals form the opinion in good faith that an abortion is “necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman” or if continuing the pregnancy “would involve risk to the life of the pregnant woman which is greater than if the pregnancy were terminated”. There is no gestational limit to this kind of abortion. 

Regulation 7 – permits abortion on 2 distinct sub-grounds relating to the condition of the unborn child. Abortion is permissible where “two registered medical professionals are of the opinion, formed in good faith, that there is a substantial risk that the condition of the fetus is such that”:

  1. The unborn child is “likely before, during or shortly after birth” i.e. fatal foetal abnormalities/life limiting conditions
  2. The child when born “would suffer from such physical or mental impairment as to be seriously disabled” i.e serious but non-fatal disabilities

There is no gestational limit to this kind of abortion. This is perhaps one of the most egregious and discriminatory aspects to the entire set of regulations – it permits abortion up till birth for non-fatal disabilities. It is this aspect of the legislation which some politicians are currently seeking to amend

Grounds for abortion:

RegulationGroundsNo. of medical professionals required to certifyGestational Limit
3On request112 weeks
4“risk of injury to the physical or mental health of the pregnant woman”224 weeks
5“to save the life, or to prevent grave permanent injury to the physical or mental health”1No limit
6“necessary to prevent grave permanent injury to the physical or mental health”2No limit
7 (a) Child will die “likely before, during or shortly after birth”2No limit
7(b) Child will suffer from serious mental or physical disability2No limit

Other Features of the Regulations 

DefinitionsRegulation 2 clarifies that a “registered medical practitioner” can be a registered doctor, nurse or midwife. Thus it appears that a doctor is not necessarily required to be involved in an abortion. 

Location of abortionsRegulation 8 lists the places where abortions can take place, and includes hospitals and other medical centres. Interestingly homes are listed for the latter half of medical/chemical abortions.

Certification for each abortionRegulation 9 mandates that the “opinion formed in good faith” by the medic before performing the abortion must be certifed and recorded in a prescribed manner.

Collection of statisticsRegulation 10 governs the collections of statistics relating to abortion, and mandates that the Chief Medical Officer is to be notified of all terminations carried out under the Regulations. 

Abortion still an offenceRegulation 11 creates an offence to carry out an abortion outside of the grounds approved in the regulations. The women herself is exempt from this provision.

Conscientious objectionRegulation 12 protects the right of any “person” to refuse to “participate in any treatment” authorised by the Regulations, i.e. abortion. This section offers noticeably more protection than the equivalent provision in the Republic’s abortion legislation, which only offers conscience protection for duties required under the Act itself, and not under other statutes or contracts of employment (which is often where duties to participate in abortion arise). 

Conclusion

It should be noted that whilst the above regulations are the law relating to abortion, in practical terms the service providing abortions has not been “commissioned” yet by the NI Health Minister Robin Swann. He is coming under intense pressure to do so, and the NI Human Rights Commission have commenced legal action against his department, the NI Executive and the NI Secretary of State.

It is important to be as accurate as possible when talking about sensitive issues like abortion. It can be easy to speak past the other person, and use words which might shed more heat than light on the situation. This is especially so when discussing the Regulations we have just looked at. From a pro-life perspective, they arguably combine some of the most permissive elements of the existing British and Irish legislation. In particular, they mirror Ireland’s abortion on request provision, and the UK’s abortion for disability up till birth provision. (Check out our blog from earlier in the week arguing that pro-lifers should support Paul Givan MLA’s bill to remove this last provision from the regulations.)

But whether you are pro-life or pro-choice, knowing what you are discussing will hopefully assist in a conversation, and this post aims to do just that. 

Gavin

Edit note: we updated the conclusion to reflect the fact that abortion has not been officially “commissioned” in NI yet, despite it being legal. (28/02/21)