Why the chances of change in NI abortion law remain slim
27 May 2018, 10:59
There's going to be a lot of focus on Northern Ireland and their abortion regime over the next few days and weeks.
While that discussion takes place, it's worth remembering that the laws which govern abortion in the UK overall are also rather unusual by international standards.
What is the law on abortion in the UK outside Northern Ireland?
There is a piece of legislation which governs abortion law in the UK. Here is the crucial passage:
"Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable . . . to be kept in penal servitude for life . . . "
This law is not just in effect in Northern Ireland but in the whole of the UK. The language isn't pretty. That isn't surprising when you consider it's from the 1861 Offence Against the Persons Act, which was passed sixty years before women had the right to vote and when the Viscount Palmerston was prime minister.
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Yet this law is not a relic from history, it is still on the statute book. It means that abortion remains a criminal offence in the UK. It is embedded in the UK criminal code.
The reason why thousands of women haven't been imprisoned over the last fifty years is because in 1967 Parliament added an amendment to that act. This is what became known as the "Abortion Act" that we still talk of today.
That amendment added five categories or exemptions to the law where abortion would be permissible in certain circumstances. Those include foetal abnormalities (Category E) and where the mother's life is in danger (Category A).
Category C, is the crucial one. That is the exemption which allows abortion on the grounds that the pregnancy would damage the mental health of the mother. The vast majority of terminations (98%) are conducted under Category C.
That is why under British law there is no "abortion on demand" as there is in much of continental Europe, where a woman can obtain an abortion just because she wants one.
In Britain you must theoretically "prove" to two doctors that carrying the child would be deleterious to your mental health.
Does this make a difference in practice?
In reality it is pretty easy in the UK to obtain an abortion. Doctors don't seriously try and ascertain whether or not a woman's mental health would be affected. There is a de facto right to an abortion.
But there is not a de jure one and the system does throw up oddities.
The principle of medical consent (which is essential to the act) means that abortions can only be undertaken at NHS hospitals and clinics. This requires women to make multiple trips to hospital and can result in painful cramps, bleeding and worse (some women have reported discharging the foetus on buses and trains) on the trip home.
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Campaigners want a change to the law which would allow women to take the medication at home. They point out that when the 1967 legislation was written those pills did not exist.
They want to see the government abolish the principle of medical consent abolished. This has already taken place in Scotland and the Welsh government are also consulting on the issue.
What about Northern Ireland?
In Northern Ireland virtually the only legislation which governs abortion remains the 1861 act. There are no exemptions, unless a woman's life is in critical danger.
If a woman is found guilty of procuring an abortion in other circumstances, as the 1861 act says, she could be liable for life imprisonment. That includes abortion on the grounds of incest, rape or foetal abnormality.
However, it is permitted to travel to another country to obtain an abortion, which hitherto meant a trip to the mainland UK but soon presumably will include south to the Republic.
How does the UK compare to other European countries?
In most of the EU, abortion is not illegal and is "on demand".
However, abortion time limits tend not to be as liberal as the UK. In the UK the limit is 28 weeks. In some countries, like Portugal, it is as low as 10. The only countries in the EU with abortion laws as draconian as Northern Ireland is Poland, Malta and Cyprus.
What are the chances of change?
For the moment, relatively modest. Traditionally this has been treated as a devolved matter for the Northern Ireland executive in Stormont.
However, that executive has not sat for over a year and Westminster is governing the province directly. There is therefore little wiggle room for the prime minister to say this is a devolved matter and leave it at that.
In normal circumstances it might have been the case that a government with a healthy majority might choose to act, saying that Northern Ireland is now an outlier and must be reformed.
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Of course, Theresa May relies on her majority in the House of Commons on 10 DUP MPs from Northern Ireland who are resolutely against a change. The DUP confidence-and-supply deal which Mrs May negotiated last year is only a two-year bargain, a time limit about which the PM will be mindful.
In terms of wider reform, that also seems unlikely in the immediate future. Parliament has very little bandwidth at the moment with numerous Brexit bills requiring urgent attention.
Traditionally abortion law has been a "conscience issue" which hasn't been whipped and isn't debated in government time. It's one of the reasons the 1967 has remained almost entirely intact for five decades.
But the Irish referendum has propelled the issue up the agenda and backbench MPs will doubtless try and prosecute votes on the situation in Northern Ireland and wider abortion reform in the UK.
Until then, abortion will remain a criminal offence, not just in Ulster but across the whole of the UK.
(c) Sky News 2018: Why the chances of change in NI abortion law remain slim