Kitty Holland: So most of us agree about the Belfast abortion case . . .
Broadside: It seems that even the anti-abortion lobby is against criminalising women who are forced to procure their own abortions
A pro-choice supporter in Belfast at a protest after a woman was sentenced for procuring her own abortion. Photograph: Charles McQuillan/Getty Images
It has been interesting to see the anti-abortion lobby come out so forcefully for repealing the Eighth Amendment in recent weeks. The comments and calls to that effect come following the sentencing of a young woman in Belfast this month to three months in prison, suspended for two years, for procuring her own abortion in 2014, when she was 19.
The woman, unable to raise the necessary funds to travel to Britain – where she would have been legally entitled to a termination, for free, had she lived there – imported abortifacient medication over the internet.
Her housemates, whom she had told she had a crisis pregnancy some weeks previously, found a 10-week- old foetus and blood-stained items in the household bin. Horrified at what they had found, and at her apparently “blasé” attitude, they reported her to the Police Service of Northern Ireland.
The woman had committed a serious crime, according to sections 58 and 59 of the 1861 Offences Against the Person Act, which govern the abortion regime in the North.
Any woman, “being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing . . . shall be guilty of felony, and being convicted thereof shall be liable . . . to be kept in penal servitude for life,” says the Act.
That the woman “got off”, as some might say, with just a three- month suspended sentence perhaps indicates how the law was in fact viewed by Belfast Crown Court.
It has been suggested that Judge David McFarland, who referred to the different legal regime around abortion in Northern Ireland compared with England, Scotland and Wales (where the 1967 Abortion Act governs) might have been loath to impose a sentence at all. However, given how seriously the 1861 Act views the “crime”, a sentence of some kind was inevitable.
The young woman, having endured a crisis pregnancy and the considerable physical pain of an induced miscarriage alone, now also has a criminal record.
Pro-choice campaigners were joined by anti-abortion voices in condemning her criminalisation. The Family Planning Association’s director in Northern Ireland, Mark Breslin, said it was “outrageous and a total disgrace that a young woman now has a criminal record due to an outdated law.
“She has effectively been punished for having no financial means or resources to enable her to travel to England for a safe and legal abortion,” Breslin said, “a position in which she should not have been put in the first place.”
Cora Sherlock of the Pro-Life Campaign, speaking on TV3’s Tonight with Sam Smyth on April 7th (I also appeared on the show), said: “We’ve always campaigned and we’ve always said that women [who have or induce abortions] should not be prosecuted.”
In this newspaper two days after Sherlock’s comments, columnist Breda O’Brien concurred: “I believe that little was to be gained by prosecuting the young woman in Northern Ireland.”
One assumes their wish that she should not have been prosecuted also holds true for this jurisdiction, where women face up to 14 years in prison (as does anyone who might aid them) for inducing a miscarriage outside the highly restrictive conditions set out in the 2013 Protection of Life During Pregnancy Act.
In its more than two years, however, there has been no prosecution under the Act. This is despite the fact that the number of abortion pills being imported has increased steadily in recent years, if seizures by Customs working with the Health Products Regulatory Authority are any guide.
The absence of any prosecution is testament, I have heard it argued, to the “sympathy” with which the law is applied here. But the law is the law. Quite correctly, it threatens sanctions and has an impact on thinking, behaviour and, in this law’s case, on the lives of women.
What is the Garda to do if it receives a report of an illegal home abortion as the PSNI did? Ignore it? What are health professionals to do if a woman or girl presents at an emergency department, bleeding profusely and terrified after inducing an abortion at home? Report that a serious law might have been broken, or ignore it?
I put this question to three maternity hospitals, the HSE and the Garda press office earlier this month.
The Garda said it is “not in the practice of discussing hypothetical situations”, but said that “if any member of the public has a complaint to make, we would encourage them to report same to An Garda Síochána, where the matter reported will be fully investigated”.
The HSE was unable to provide an answer, saying the issue was under discussion. The Rotunda and Holles Street took up to 10 hours to respond, describing the question as “hypothetical” but stressing that patient welfare was their priority. The Coombe did not comment.
One sensed that none was at ease with the question or the issue, particularly healthcare professionals. They are not obliged to report an induced miscarriage to gardaí, but they have no guidelines about how they should react when they know this law has been broken.
Would they report to the Garda when a person comes to the emergency department and dies of a gunshot wound? I hope they would. So then shouldn’t they when an unborn has been killed?
Everyone, it seems, would rather the issue, or at least the threat of criminalising women, just go away.
The reason it remains, of course, is article 40.3.3 of the Constitution, which guarantees to protect the “equal right to life” of the woman and the unborn. The unlawful taking of the unborn’s life is akin to unlawfully taking the mother’s; akin to manslaughter or murder, in other words. The legal fact continues to hang like a Sword of Damocles over health professionals, women and those who love and would want to help them.
No one, not even the anti-abortion lobby, wants to see them prosecuted. If they are serious in this wish, they too, it seems, should join the campaign to repeal the eighth.