Reproductive rights: abortion decriminalised in Northern Ireland but women’s rights under siege elsewhere

Jennifer Sadler-Venis, IBA Content Editor

At the end of October, abortion was decriminalised in Northern Ireland. A framework providing legal access to abortion must now be in place by 31 March 2020. Until then, women in Northern Ireland can acquire pills and other means to terminate pregnancies, and doctors are not required to report them for doing so.

The new legislation repeals Sections 58 and 59 of the Offences Against the Person Act 1861, which carried a maximum sentence of life in prison for anyone who tried to terminate their own pregnancy or up to three years for assisting someone in terminating theirs. Exceptions only applied in cases of serious risk to the woman’s health, but not fatal foetal abnormalities, rape or incest.

Section 9 of the Northern Ireland (Executive Formation etc) Act 2019 determined that unless the Stormont Assembly – the seat of Northern Ireland’s currently collapsed devolved government – was restored by 21 October, the UK government would take responsibility for overhauling laws relating to abortion and the procedure would be decriminalised with immediate effect.

Human rights bodies and organisations have long recognised that restricting access to abortion care contravenes human rights standards and, in some cases, can lead to physical or mental suffering which may constitute ill treatment or torture

Franki Appleton
Advocacy & Public Affairs Advisor, Marie Stopes UK

In the rest of the UK, the Abortion Act 1967 ensures legal access to abortion if certain criteria are met, an amendment to the 1861 Act that was not provided for Northern Ireland. Until July 2017, Northern Irish women who travelled to Britain to use NHS abortion services were charged £900 for the procedure, creating a socio-economic barrier to reproductive healthcare.

In 2018, a Supreme Court judgment stated that Northern Ireland’s abortion ban was incompatible with Articles 3 and 8 of the European Convention on Human Rights, which protect the rights to privacy and from inhuman or degrading treatment. In the judgment, President of the Supreme Court Lady Hale described how ‘for those women who become pregnant, or who are obliged to carry a pregnancy to term, against their will there can be few greater invasions of their autonomy and bodily integrity’.

Franki Appleton is Advocacy & Public Affairs Advisor at reproductive healthcare organisation Marie Stopes UK. ‘Human rights bodies and organisations have long recognised that restricting access to abortion care contravenes human rights standards,’ she says. ‘And, in some cases, can lead to physical or mental suffering which may constitute ill treatment or torture’.

2019 has seen women’s rights being brought into considerable conflict with the desire of some groups to give foetuses rights from the point of conception. The US saw a wave of attempted abortion bans intended to challenge Roe v Wade, which protects access to abortion under the constitutional right to privacy. Many such attempts would have declared the personhood of a foetus and some bans, such as Alabama’s, would have criminalised abortion from conception with no exceptions for rape or incest.

The bans cannot be enforced while Roe stands. However, Elisabeth Smith, Chief Counsel for State Policy & Advocacy at the Center for Reproductive Rights, told Global Insight that states and prosecutors are finding other ways to target reproductive rights. For example, some have attempted to regulate abortion providers to the point that states are left with only one remaining provider, while Oklahoma has banned the standard procedure for abortions after 14 weeks of gestation.

Laws do not necessarily need to be abortion-related to compromise women’s reproductive rights. One US woman was almost prosecuted after being shot in the stomach during an argument while five months pregnant. Smith told Global Insight about cases that have not turned on a lack of a right to abortion, but ‘instead prosecuting attorneys have used existing criminal law unrelated to abortion to charge and try a pregnant person’. She believes this is ‘indicative of an interest in holding women accountable for pregnancy outcomes’.

US legislators only need to look south to Latin America to see how far this interest could go. In El Salvador, the constitution recognises a right to life from conception and abortion is banned in all circumstances, carrying a prison sentence of up to eight years. Human rights organisations and campaigns, such as Las 17, argue women who suffer pregnancy complications are being criminalised too.

Las 17 point to women serving 30–40 year sentences for aggravated homicide in cases where prosecutors argue the women killed their babies after birth, as opposed to losing them in obstetric emergencies. One such woman, Evelyn Hernández, was acquitted earlier in 2019 but now faces a third trial, with the Public Prosecutor’s Office pushing for a sentence of 40 years.

Herman Duarte, Latin American Regional Forum Liaison Officer for the IBA Human Rights Law Committee and Director at Hduarte Legal, says the issue is ‘not a matter only of reproductive health, because matters around social class, race, education also play a role in the type of women being prosecuted’. He notes that all the prosecution cases have included women who live in conditions of poverty, with some so poor they lack basic sanitation and running water.

According to Duarte, a ‘conversation has emerged around spontaneous losses due to not having the proper conditions for a pregnancy to be carried on’ and highlights that in some cases, women end up being victims of ‘conservative groups’ effective lobby in blocking access to a formal sexual education in the country’.

Image: riccar /