Abortion guidelines North and South deny women their rights under law
Opinion: In both jurisdictions, a frantic ‘pro-life’ rearguard action has persuaded politicians to back off from meaningful change
‘Despite Ms Halappanavar’s death, far from being enhanced, women’s rights will be diminished.’ Above, a protest outside the Dáil about abortion legislation following the death of Savita Halappanavar. Photograph: Alan Betson / THE IRISH TIMES
North and South, proposed guidelines on abortion deny women their rights under the law. The guidelines also do not reflect the majority view of the public in either jurisdiction.
Abortion law in the North derives from the 1937 Bourne judgment in which a doctor who had performed an abortion on a 14-year-old pregnant as a result of rape was acquitted of any offence. At the time, the operative law across the UK was the 1861 Offences Against the Person Act. This made abortion a crime and laid down a penalty of up to life imprisonment.
The Bourne judgment made abortion legal if carrying a pregnancy to full term would leave the woman “a physical or mental wreck”.
The 1967 Abortion Act was designed to provide clarity on the judgment. However, the Act wasn’t extended to the North, where Bourne still holds but where, 47 years later, practice still doesn’t follow the Bourne ruling.
Neither the Stormont Parliament, abolished in 1972, nor the Assembly, established under the 1998 agreement has moved to bring practice into line with the law. The Democratic Unionist Party has spelled it out that the capacity of the devolved institution to thwart extension of the Act was a crucial factor in its acceptance of the devolution deal.
The vulnerability of all main Northern parties to “pro-life” pressure was on clear display in 2008 when proposals at Westminster to give Northern women the same rights as women in Britain were scuppered, at least in part by a letter sent to every MP and signed by party leaders Ian Paisley snr, Gerry Adams, Sir Reg Empey and Mark Durkan urging rejection of the proposal.
Liberal stanceUnwillingness to face down the “pro-life” lobby was again evident in the run-up to last April’s local and European elections. “Pro-life” group Precious Life, angered by Sinn Féin’s relatively liberal stance in the South, included the party in its list of “pro-abortion” groups to be shunned at the polls. The party responded with a statement saying: “We are not pro-choice and we are not in favour of abortion [other than] where a pregnant woman’s life is in danger . . . This is a position shared by the SDLP and the DUP and Catholic bishop John McAreavey.”
The statement was withdrawn when the bishop challenged the depiction of his position and complained about being drawn into a political wrangle.
Succession of judgmentsThe legal position remains as established by Bourne. The Northern courts’ interpretation of Bourne has been set out in a succession of judgments, including in the 1993 K case in which Mr Justice Shiel ruled that a pregnant 14-year-old threatening suicide was legally entitled to an abortion because “to allow the pregnancy to continue to full term would result in [the girl] being a physical and mental wreck.”
No doctor could be found to provide the girl with the legal procedure. She had her abortion in England.
All recent surveys of Northern public opinion show acceptance of abortion in much wider circumstances than in K. But the Department of Health under the DUP’s Edwin Poots has paid no attention to this or to the law and issued guidelines restating that abortion is a serious crime and dropping the “physical or mental wreck” ground for legal termination.
In the South, too, the leaked abortion guidelines for implementation of the Protection of Life During Pregnancy Act, passed last year following the death of Savita Halappanavar, impose restrictions not required or implied in the law as it operated prior to Ms Halappanavar’s death.
The new law was intended “to make provision for reviews at the instigation of a pregnant woman of certain medical opinions given in respect of pregnancy”. This didn’t necessarily contradict the ruling in the X case in 1992, which declared risk of suicide a ground for legal abortion.
There was no basis in the 1992 ruling for the procedure envisaged in the new Act and significantly sharpened in the guidelines, requiring a woman seeking an abortion on ground of risk of suicide to ask her GP to refer her to three doctors for decision. If turned down, she could appeal to three other doctors.
Potentially, then, a desperate woman might have to discuss her situation with up to seven doctors and try to convince them that she might commit suicide. Despite Ms Halappanavar’s death, far from being enhanced, women’s rights will be diminished.
In both jurisdictions, a frantic “pro-life” rearguard action has persuaded politicians to back off from meaningful change, even if existing law provides for real change and meets the wishes of a majority of citizens.
Politicians North and South have occasional differences, but when it comes to women’s rights, they are brothers under the skin.