Northern Ireland Abortion Law: vague, confusing and inconsistent. Some people want to keep it that way…

Yesterday in Belfast’s High Court a judicial review progress began, brought by anti-choice group SPUC against the DHSSPS in an attempt to have recently published departmental guidance on abortion practice revoked. It was due to conclude today but as yet there have been no press releases on the issue. Since SPUC appear to churn out a press release every time one of their number takes a successful dump, I’m going to assume that either a) the hearing will continue tomorrow b) they didn’t get the result they wanted.

In the meantime I thought it might be helpful to recap a bit of the back story to these events as it helps put into perspective the shameful decision of SPUC to waste public money by forcing the DHSSPS to defend a valid and extremely important document in the courts. This is quite an epic story and so for today I give you…

Part 1: The Legislation

When you start to read the various laws and rulings in test cases that have shaped abortion law in Northern Ireland you begin to understand more fully why a guidance document was well overdue. The most significant are:

  • The Offences Against the Person Act 1861

The most commonly quoted, the Act which states clearly that performing an “unlawful” abortion on yourself or another person is a felony. Also includes supplying any “poison, noxious thing or instrument” that you know is going to be used for an abortion. I’m hoping they don’t use poison these days…

  • The R. v Bourne Case 1939

An obstetrician who carried out an abortion for a 14 year old girl who had been raped was charged under The Offences Against the Person Act 1861. The judge in the case made the important observation that the act makes reference to “unlawfully” procuring an abortion. In the legal progress made since the writing of that act, there now existed some ways of defining what “unlawfully” meant. He concluded it had something to do with making sure a woman doesn’t die unnecessarily. As well as talking about the preservation of life, he noted that abortion should be legal where a medical professional judges that “the continuance of the pregnancy will be to make the woman a physical or mental wreck.” The ruling in this test case served as the main guiding legislation in all of the UK until the Abortion Act 1967 brought more clarity and consistency of practice in England, Wales and Scotland. We weren’t so fortunate…

  • The Criminal Justice Act (Northern Ireland) 1945

Depressingly, this act states that the penalty for “child destruction” is life imprisonment. However, it also incorporates the proviso that no felony has been committed if the act is “done in good faith for the purpose only of preserving the life of the mother”, in accordance with the 1939 Bourne case.

What has emerged over the years is that the physical part of the dilemma is easy enough to rule on while the definition of a “mental wreck” is a little more difficult. As it currently stands, the law can be interpreted under 6 principles, within which it becomes clear that legal abortions can be carried out in Northern Ireland where there will probably be an adverse effect to the woman’s physical or mental health which is deemed to be “real and serious” and “permanent or long term”. In addition, it is worth noting that for a legal abortion to be granted on the grounds of mental health, it is most likely that there would have to be evidence of a pre-existing mental illness but not in all cases.

All of the above information is included in the DHSSPS guidance, along with lots more useful facts about abortion practice, how decisions are made, the responsibilities doctors have towards women in their care and the options open to doctors who have ethical objections to abortion provision. I can’t for the life of me imagine any reason to have this document withdrawn and so I’m looking to SPUC to explain to me the sinister element I appear to have missed.

Stop by tomorrow for Part 2: The fpa’s 8 Year Fight for Clarity when we will hopefully have the result of the hearing.


1 Response to “Northern Ireland Abortion Law: vague, confusing and inconsistent. Some people want to keep it that way…”

  1. 1 Stu October 29, 2009 at 12:25 am

    Looking forward to your (no doubt eventual) post on the reluctance of the ‘big 4’ political parties to deal with this issue. Maybe RCs and Free Ps have more in common than they think?

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