Abortion in Northern Ireland: Politics and Law at Odds

Critical Overview: An Examination of Abortion Reform in Northern Ireland

The history of abortion reform in Northern Ireland has been a contentious issue. In 2019, the UK Parliament passed the Northern Ireland (Executive Formation etc.) Act 2019 (2019 Act), which obligated the Secretary of State to implement abortion reform according to the Committee on the Elimination of Discrimination of Women (CtteEDAW) report. However, almost two years have passed, and long-term abortion facilities in Northern Ireland remain unestablished, leaving many to wonder what has happened.

The Background to Legal Change

In 1967, abortion reform was enacted in Great Britain but not extended to Northern Ireland, which was the only devolved administration in the UK at the time. Health care was entirely devolved to Stormont. Abortion reform was not extended to Northern Ireland when Direct Rule began in 1972. Until 2019, most abortions were illegal under sections 58 and 59 of the Offences Against the Person Act 1861 and section 25(1) of the Criminal Justice Act (Northern Ireland) 1945. The Bourne exception was the only exception, derived from a criminal case involving Mr Justice Macnaghten’s summing up of evidence, in which he stated that an abortion could be legally performed “in good faith for the purpose only of preserving the life of the mother.”

Complex and challenging cases dealing with whether an abortion would be lawful were intermittently handled by the courts. Examples include Northern Health and Social Services Board v F and G [1993] NI 268, which concerned a 14-year-old seeking an abortion, and Northern Health and Social Services Board v A and others [1994] NIJB 1, which concerned a woman with severe developmental disabilities, in which the health authority requested a declaration that an abortion would be legal. From these cases, the Bourne exception’s focus on preserving the life of the mother was expanded to include injuries to physical or mental health, but only “real and serious” injuries that must be “permanent or long term,” with no other exceptions to the general illegality of abortion under Northern Ireland law. Re Family Planning Association of Northern Ireland [2004] NICA 37-39 examined this legal framework, and the Northern Ireland Court of Appeal unanimously ruled that the absence of guidance on legal abortions in Northern Ireland breached a statutory obligation to provide integrated health services. However, the actual law remained unreformed.

A somewhat clearer picture of the law emerged in 2018 when the Supreme Court ruled on Re Northern Ireland Human Rights Commission [2018] UKSC 27. The court considered whether the existing abortion law in Northern Ireland was compatible with the rights under the European Convention on Human Rights (ECHR), in particular Articles 2 (right to life), 3 (right not to be subjected to torture or inhuman or degrading treatment or punishment), 8 (right to private and family life), and 14 (prohibition of discrimination). By a majority, the Supreme Court concluded that the abortion law in Northern Ireland was incompatible with ECHR rights. However, since a different majority of the same panel found that the Human Rights Commission lacked the authority to bring this case, no legal changes resulted from the overall decision.

The Route to Legal Change

In the following year, as the Northern Ireland Assembly remained comatose, the UK Parliament had to pass new legislation for some governance functions to continue in the jurisdiction. The legislation became the 2019 Act, which contained amendments to reform abortion law and enact same-sex marriage by Labour MPs Stella Creasy and Conor McGinn, respectively. The duties created by the 2019 Act led to the making of the Abortion (Northern Ireland) Regulations 2020, which were ultimately replaced.