News of the imminent attack on Roe v Wade in the USA is unsettling to pro-choice activists around the world. It reminds us that despite the perceived legal foundations reproductive rights may have, the struggle to retain and exercise these rights is on-going and not likely to end any time soon. With the Assembly elections scheduled for the 5th of May, many candidates are being questioned on a wide range of social and economic issues. The Alliance For Choice Derry group have undertaken vital work in collating information regarding the stance of all potential representatives on reproductive rights and freedom. Through the work of A4C Derry, voters are now able to view the opinions of all the candidates for their constituency with ease. Unfortunately, a number of representatives did not reply, or have refused to share their opinion prior to being elected.
The struggle we have experienced in the North with the commissioning of services and the fact that hundreds of women, girls and pregnant people still have to travel to England to access healthcare underscores how important the issue of reproductive rights, freedom and access still is. The Abortion Regulations introduced in 2020 did not automatically bring about widespread access to vital care services.
Westminster set a deadline of the 31st of March 2022 for services to be commissioned in full. Robin Swan, the Health Minister, failed to fulfil his duties. Health Trusts in the north are offering care inconsistently and the Western Trust has no services available at all. People living in the Western Trust are forced to travel to England, Scotland or across the border to receive healthcare. Following the up-coming assembly election, Secretary of State Brandon Lewis is poised to put further obligations on whoever becomes the next Minister of Health.
The Abortion regulations in place have already been subjected to attempts to dismantle and weaken them, one example being the bill introduced by the DUP’s Paul Givan. Givan attempted to curtail the ability for a person to seek out a later-term abortion for what he deemed ‘non-fatal disabilities’. On the other hand, the regulations have been subjected to beneficial reform with Clare Bailey’s bill regarding exclusion zones passing in Stormont in April 2022.
The various ways in which the regulations have been changed, or attempted to be changed, show that the regulations are good, but they are not perfect. The fact the regulations decriminalised abortion is a very welcome aspect and something many of us would hope to see in the south and in other areas of the United Kingdom.
There are further ways the abortion regulations could be reformed in order to further enshrine and protect the rights and freedoms of pregnant people. International human rights standards tells us that forcing a person to carry an unwanted or unsafe pregnancy to term is a form of torture, cruel and inhumane treatment. Two particular reforms to the abortion regulations could enable the establishment of fair, caring and compassionate healthcare at home, in the north.
Gestational Age Limits
Currently the law in the north is informed by the Criminal Justice (Northern Ireland) Act 1945. This law basically makes it illegal to terminate a foetus capable of surviving outside of the womb. Estimates put this point at about 24 weeks gestation. There is no gestational limit in cases of fatal foetal abnormalities or grave risk to the health or life of the mother. There is also a 12 week cut-off point for what is commonly termed ‘social’ abortions, that is not specifically linked to a risk to health. However, due to the widespread issues of commissioning and offering services, the cut-off in practice is 10 weeks. Any person beyond 9 weeks and 6 days must self-refer and travel elsewhere for abortion care. Gestational age limits should be completely repealed in the north.
Gestational age limits are an inherently harmful practice, they do not stop people obtaining terminations but simply make it harder and more expensive. The Royal College of Midwives have dubbed the gestational age limits in NI arbitrary and highlighted the acute effect it will have on vulnerable women. The necessity to travel exposes the class division pertaining to healthcare access, with poorer women less likely to be able to afford to take time off work, pay for childcare and pay for the travelling. It is essential that women, girls and pregnant people can access healthcare close to home, without the added pressure and possible trauma of having to travel to somewhere they may have never been before.
This is especially true for later abortions, for which a person may experience intense stigma. Particularly as a person approaches the gestational cut off regarding viability. The issue with setting a clear line for viability is that there is not a clear moment when a foetus becomes viable. It is not that a foetus is not viable at 23 weeks and 6 days, and suddenly within 24 hours they have a definite chance of surviving outside of the womb. Academics have highlighted the falsity of the viability claims, the idea of viability is something of a grey area. It is arbitrary and harmful to have such a definitive and harsh timeline for people attempting to access healthcare.
There is also a fictive narrative of the fickle woman who will attempt to access an abortion perhaps in their last trimester because they want to go on a holiday, or something equally as frivolous. This is often a fear recounted by anti-Choice activists regarding ‘abortion until birth’ debates. It feeds into the stereotype of the ‘virtuous woman’ and leads us to situations of increasingly paternalistic and misogynistic standards of healthcare provision. However, these fears are unfounded and not reflective of reality.
Canada has not had gestational age limits on abortion access for over three decades. Statistics from Canada show that the repealing of gestational age limits does not correlate to more later abortions. In fact, 90% of abortions still take place during the first trimester. 0.6% take place over 20 weeks gestation. The repeal of gestational age limits in Canada has enabled people to access healthcare quicker, easier and with less barriers in place. Overall it has actually led to the average gestational age at the time of termination falling. This highlights how gestational age limits are little more than another barrier to true reproductive freedom, and should be repealed as soon as possible. The onus on people to discover they are pregnant and make a decision regarding carrying the pregnancy is particularly burdensome for the younger, more vulnerable and less educated healthcare recipients.
Conscientious Objection
Once abortion healthcare services are properly funded and commissioned in the north many barriers to access will remain in place. One key barrier to healthcare can be conscientious objection. Conscientious objection is not unique to reproductive care, it is often an issue in end of life care or euthanasia, for example. Conscientious objection was a key barrier to access following the repealing of the 8th Amendment in the south. This was more than likely due to the fact that conscientious objection was not clearly defined or regulated.
The law on conscientious objection for the north is also vague and subject to minimal regulation. A healthcare professional is compelled to act against their conscience to save a person’s life, but that is the only explicit stipulation. This could lead to a situation in which professionals across healthcare settings can object to something as simple as referring a patient, fulfilling a prescription or providing them care following a procedure.
Conscientious objection is a widely debated topic within medical ethics in general. There are those that believe there should be no allowance for conscientious objection at all, that it opens the door to discriminatory judgemental healthcare provision.
However, conscientious objection is often claimed upon religious grounds. The right to have your religious beliefs respected, and the allowance to act in accordance with one’s beliefs is widely recognised as a fundamental human right. Compelling a medical professional to act against their conscience and morals will not result in caring and compassionate healthcare provision. Conscientious objection should be enshrined in the law, but the law should be reformed to reflect the protections for both patients and professionals regarding objection in the rest of the UK.
Following the UK Supreme Court judgment regarding the Doogan and Woode case, it has been accepted that conscientious objection should be limited to cases in which a doctor will physically be taking part in the termination in a ‘hands-on manner’. This narrow interpretation would mean that pregnant women, girls and people would be less exposed to blunt refusals and possible shame and stigma. It is inline with international human rights standards that the right to conscientiously object is maintained, but that the legal basis should be well-regulated, robustly defined and consistently applied.
This reform on conscientious objection is essential in the north as nearly a thousand medical personnel, including doctors, nurses and midwives signed an open letter detailing their objection to provide abortion services. Higher levels of conscientious objection are also explicitly linked with longer waiting times, and this can work to compound the restraints placed upon people by gestational age limits.
These different barriers to access manifest in different ways but ultimately form a widespread maze of procedural and legal barriers to reproductive freedom and healthcare. Many thought that the introduction of abortion reform from Westminster would spell the end of the debate in the north. This is far from the truth, and the importance of reproductive freedom is being shown in the levels of engagement with candidates’ stance on the Abortion regulations. The regulations have already been subject to attack, and more attacks are likely to come. It is important that the pro-choice elected representatives work together in the next Assembly to strengthen and solidify the rights to healthcare and reproductive freedom we have waited so long for.
Cara MacSherry is from Omagh, Co. Tyrone. She holds a BA in International Politics and Conflict Studies. She is currently taking an LLM in Human Rights Law at QUB.