Irish abortion referendum: result prompts liberalisation of one of the strictest laws in the world

Above: Arlene Foster, former Northern Ireland First Minister

Moreover, de Londras stresses that abortion will not be ‘on tap’ now in Ireland, as some critics have warned. ‘After 12 weeks – we’re calling it the ‘protected period’ – it will be incredibly difficult to access abortion,’ she says. ‘It will only be in catastrophic situations, so it’s still a very conservative law, but the Citizens’ Assembly, the parliamentary committee and the government all decided to go with what the evidence told them would be the best law. It’s interesting that it’s not minimal compliance with international human rights law and they decided that if they were going to do it they were going to do it properly. I think that’s very positive.’

The Irish referendum result has also reignited the debate in Northern Ireland, where, unlike the rest of the UK, terminating pregnancy is only permitted when the mother's life is at risk or there is a serious or permanent risk to her mental health. Following a 2013 Belfast High Court ruling which found that the country’s restrictive abortion laws were ‘incompatible with human rights’, the UK Supreme Court was asked to rule on whether it was lawful that Northern Ireland prohibits abortions where a pregnancy arises from rape or incest, or involves a serious foetal abnormality. On 7 June, the Court dismissed the challenge brought by the Northern Ireland Human Rights Commission (NIHRC), saying it did not have legal standing to bring the case.

Nonetheless, the majority of the justices regarded the law as incompatible with certain rights under the European Convention of Human Rights. Five out of seven justices agreed it was incompatible in cases of fatal foetal abnormality. Leah Hoctor, Regional Director for Europe at the Center for Reproductive Rights (CRR) in New York, which intervened as a third party in the case, said this was significant: ‘Although the Court considered that it was unable to issue a declaration of incompatibility, it has clearly recognised the harm that the near total prohibition on abortion is causing women and girls.’

Former Northern Ireland First Minister Arlene Foster told Global Insight in 2016 that she had set up a working group to improve knowledge ‘about all of the consequences around [fatal foetal abnormalities].’ Unbeknownst to the justices at the time of writing the judgment, their conclusion echoed concerns raised in a paper that the working group published in April 2018, which recommended the law should allow for terminations in cases of fatal foetal abnormality.

Northern Ireland hasn’t had a local government since January 2017 following the collapse of the power-sharing agreement between the Democratic Unionist Party and Sinn Féin. Although the UK government argues that abortion there is a devolved matter, De Londras says the Supreme Court ruling may finally force the issue at Westminster. ‘I think it’s worth noting that in international legal terms the UK as a state is responsible for ensuring rights compliance and the Committee on the Elimination of Discrimination against Women (CEDAW) and others have already noted that the law in Northern Ireland violates international human rights law,’ she says. ‘So while the internal constitutional arrangements suggest that it is up to the Northern Ireland Assembly to resolve this, from an international legal perspective the UK per se has the responsibility and there is an argument that if the Assembly continues to be inoperative there is a duty on Westminster to step in and resolve this.’

This stalemate makes it difficult to see how the situation will be resolved quickly, but Barbara Connolly QC, a barrister at 7 Bedford Row Chambers and Co-Chair of the IBA Family Law Committee, believes Northern Ireland will have to come into line with both Ireland and the rest of the UK. ‘It seems really ironic to me that the Republic, which was held up for such a long time as being so behind the times, has actually forged ahead firstly on the referendum on gay marriage and now on abortion,’ says Connolly. ‘Whatever one’s views about abortion, I think the days when it can’t be available are long gone. I don’t think anybody has ever suggested that it should be used as a form of birth control and sometimes for some women it may be necessary.’

Abortion has resurfaced in public debate in Poland, where there have been renewed attempts by the government to tighten the country’s strict abortion laws. In scenes that echoed the heated protests of 2016, thousands of protesters took to the streets in March to oppose a proposal to ban abortions of foetuses with congenital disorders, which covers more than 90 per cent of legal abortions in Poland. The CRR’s Hoctor hopes the situation in Ireland will give women in Poland and elsewhere cause for optimism. ‘The Irish referendum result has been warmly welcomed by women and advocates in Poland and Northern Ireland and has strengthened their determination to ensure the protection of women’s health and rights and achieve progressive law reform,’ she tells Global Insight. ‘It has also sent an important signal to lawmakers in European countries that maintain highly restrictive abortion laws, that laws that harm women’s health are not sustainable and must be reformed.’