By Nathan Emmerich.
On the 21st of October 2019 abortion was effectively decriminalized in Northern Ireland (NI). Prior to this abortion was illegal in NI, including in cases of fatal fetal abnormalities or when conception resulted from rape or incest. Furthermore, whether or not the risks posed to the mother of continuing a pregnancy justified the termination of pregnancy was unclear. What has changed is that sections 58 and 59 of a law made in 1861, the Offences Against the Person Act, have been repealed. This law made any attempt to ‘procure a miscarriage’ or to supply the means to do so a criminal offence; its repeal means that the only remaining relevant legislation in NI—where the Abortion Act (1967) continues not to apply—is Section 25(1) of the Criminal Justice Act (NI) 1945. This renders the destruction of a foetus capable of being born alive illegal, except when it is required to preserve a pregnant woman’s life. Thus, having had one of the most restrictive approaches to the termination of pregnancy in Europe, it now has one of the most permissive.
These changes have been a longtime coming and the situation in NI recently came within a hairs breadth of being declared incompatible with Article 8 of the Human Right Act by a judge in the Belfast High Court. The NI courts had previously been under pressure to clarify the position and similar pressure had also been applied to NI’s devolved government, Stormont. Whilst guidance did emerge a few years ago, it was rescinded in the face of challenges brought by those opposed to abortion. Having therefore failed to clarify the situation, and having now been suspended for nearly three years, it was clear that Stormont was not in a position to either clarify the existing position or to set forth its own legal framework.
As Anna Caffola recently suggested, the recent changes are another victory for grassroots campaigners, following on the heels of their success in the referendum held in the Republic. However, whilst it may now be legal to provide abortion in NI, challenges remain if equality of access is to be achieved. Furthermore, it is not up to grassroots campaigners to meet such challenges; they are issues that the NHS as well as medical and healthcare professions in NI must face up to.
Even with the law as it was, a small number of pregnancies were terminated in NI, at least as compared to the far greater numbers who travelled abroad. Clearly, then, some medical expertise exists but the clinical infrastructure is fairly minimal when one considers the needs that will need to be met in the near future. The suggestion is that two clinics will be created in April 2020 although the relevant CEDAW Report [,pdf] suggests more ought to be created. Before then—and perhaps for some time after, at least for some—women will continue to travel to clinics in England, as they have since 2017, accessing services and funding via a scheme run by BPAS.
In the first instance, then, there is a clear need to ensure that termination of pregnancy is available to women in NI and that they are not required to travel elsewhere. However, we might also note that it would seem unfair to expect a few individual professionals to shoulder the clinical burden of this work in its entirety, particularly if access is to be provided in a timely manner. No one goes into medicine to do the same relatively simple procedure day in and day out. Thus, it not only seems likely that there will need to be a development in facilities but more healthcare professionals are going to have to be involved in providing this service.
In this context, the need to provide the required service is only part of the picture. Some thought needs to be given to the matter of conscientious objection and its potential impact. As with elsewhere in the UK, healthcare in NI is provided by the NHS. This means that the patient’s primary point of access to the vast majority of services is usually via their General Practitioner or Family Doctor. Whilst I am, generally speaking, a proponent of conscientious objection and, unlike some of those who have commented on the general issue, I would not like to see a healthcare professional’s right not to participate removed. Nevertheless, I think it is safe to assume that there will be relatively high levels of conscientious objection to abortion amongst doctors and nurses in NI. We are also likely to see others, such as managers, administrators and adjunct staff, making claims regarding conscientious objection in relation to abortion, although most of should be rejected on the basis of their tangential relationship to the actual procedure.
For the time being those who conscientiously object to abortion are being advised [.pdf] to refer patients enquiring about an abortion to places ‘where information about services is available’ such as www.gov.uk. Arguably, this is less than the minimum required. At the very least patients should be directed to the relevant page on the BPAS website and a few may also need to be advised about where they can access the internet. As we move forward, individual GPs who hold conscientious objections will be required to effectively refer patients wishing to discuss the matter to a provider who holds no such objection. Herein lies an issue of some significance: to whom will referral be made if, as seems likely to occur in at least some cases, all the doctors in a particular General Practice hold a conscientious objection to abortion?
As the Abortion Act does not apply, although it may yet be extended as the UK government is under a duty to enact further legislation [.pdf], patients seeking an abortion in NI do not presently require the approval of two medical practitioners. Thus, it may be that patients will be able to access the new clinics planned for April 2020 directly, and the need for a referral / corroborating approval is presently unnecessary. However, some patients will no doubt turn to their GP in the first instance. If we are to be assured that General Practitioners are in a position to effectively refer their patients as and when they encounter them, both objecting and non-objecting practitioners as well as the professions in NI should be proactive in considering this matter. Furthermore, per the guidance issued by the Department of Health in advance of the legislative changes [.pdf], it may well be necessary to make efforts to ensure that medical doctors are aware of what it means to act with professionalism in this context, as well as to remind them of their duty to respect patient confidentiality.
The NHS and the healthcare professions in NI might also do well to consider how they will react to the activities of anti-abortion groups now the termination of pregnancy is legal. Previously, such groups picketed the Marie Stopes clinic in Belfast for the duration of its existence, whilst the Attorney General sought to question whether it was operating within the law. Indeed, in 2013 the Attorney General wrote to all obstetricians and gynaecologists in NI advising them to ensure their practices were consistent with the law. This was done in the face of the legal uncertainty which he arguably help to maintain, and was perceived as having a chilling effect on clinicians’ ability to help NI patients who wished to terminate their pregnancy.
In addition, the behavior of those campaigning outside of the Marie Stopes clinic arguably amounted to the harassment of both patients and members of staff. In an attempt to shield women attending the clinic from the behavior of anti-abortion campaigners the aforementioned grassroots organizations that pursued the legalization of abortion in both the Republic of Ireland and Northern Ireland provided volunteers to escort them. I have no doubt that protesters will also target the clinics that will be created in NI shortly. It will not be a surprise if the women attending these new facilities—who, lest we forget, have the same rights to confidentiality when accessing medical care as anyone else—are faced with the kinds of tactics and materials anti-abortion groups previously used in Belfast. It has already been suggested that buffer zones, similar to those used in response to pickets of West London clinic, will have to be established. Furthermore, if women are to be protected from intimidation and harassment from persistent individuals—or, for that matter, disinformation and manipulation by ‘fake clinics’—a more targeted legal approach may be required. Who, precisely, will be responsible for bringing such actions remains unclear.
It may well be that the leadership of the Department of Health, the NHS and the Healthcare Professions in both the UK and NI are going to have to take the lead and engage with the kinds of issues set out above. Ensuring women in NI can access legal provided healthcare services without an unacceptable level of inconvenience and harassment should be a priority for all involved, including those whose personal views mean that they conscientiously object. As a recent editorial accompanying a special issue of The New Bioethics on this very topic suggests, the idea that healthcare professionals can conscientious object has lately come under some pressure. In this context, the attitudes and behavior of those who lay claim to such objections following the legal reforms in NI may well take on a good deal of significance; obstruction and a lack of proper cooperation will provide further impetus to those who think the right of non-participation should be revoked, and ought to be seen in a dim light by governing bodies. Abortion in NI was once a devolved matter. Now that is no longer the case, ensuring such services are provided ethically must be seen as a UK-wide concern. It may well be, then, that those in NI will need explicit support from the UK’s professional bodies.
Acknowledgements: Thanks to the Dr Siún Carden for comments, corrections and clarifications. I should also acknowledge the information publicised by Dr Fiona Bloomer, especially this particularly informative thread.
Author: Dr Nathan Emmerich
Affiliation: The Medical School, Australian National University. Institute of Ethics, Dublin City University.
Competing Interests: None.