The IBA’s response to the war in Ukraine
Moves to restrict abortion law trigger global concern over reproductive rights
Towards the end of 2016, thousands of women across Poland demonstrated against the government’s plans to introduce an outright ban on abortions. In a year that saw growing concerns over strict abortion laws in other parts of the world, the move – which would have led to a prison term for both the offending woman and any assisting physician – was greeted with widespread condemnation.
Within days, the proposal was resoundingly rejected by the country’s Parliament. Nevertheless, it raises questions of concern about a country’s willingness to make its laws on abortion even more restrictive.
Barbara Connolly is Vice-Chair of the IBA Family Law Committee. ‘I’m not sure personally of the basis upon which countries can try to impose restrictions in this way,’ she says.
‘I understand in some jurisdictions that there is hesitation, reticence and even outright opposition to relaxing laws to allow abortion and this stems largely, but not exclusively from the particular society’s religious views. Why Poland should be trying to put restrictions on abortion now, I’m not clear.
'It’s always been a very religious country, but I haven’t heard of clamouring for abortions in other areas of Central and Eastern Europe, where there has been clamouring for immigration that has been deeply worrying. My personal view is it is one thing to recognise and acknowledge deeply held views, but they must be balanced against those that don’t respect rights.’
In Poland, terminating a pregnancy is currently only permitted by law in cases where the life of the foetus is under threat, the mother’s health is in danger or in the event of rape or incest. Under the proposed changes by the ruling Law and Justice Party, abortions would have been criminalised, with women facing up to five years in prison and medical personnel found to be assisting with abortions also facing a jail term.
If such a proposal had been successful, the consequences would have been alarming, says Patricia Barclay, Chair of the IBA Healthcare and Life Sciences Law Committee. ‘The idea of having an abortion is not attractive and I don’t think anyone would choose to have one, but the unintended consequences of some of these laws would lead to backstreet abortions that are unsafe,’ she says. ‘If the woman is bleeding or not feeling well, how long would you wait to seek medical help if you know you would be facing a prison term? A backstreet abortion is not going to be as safe as having an abortion in hospital and the aftercare is simply not going to be there.’
It is one thing to recognise and acknowledge deeply held views, but they must be balanced against those that don’t respect rights
Barbara Connolly, Vice-Chair, IBA Family Law Committee
As Connolly notes, the debate in Poland comes amidst calls in other parts of the world, such as Latin America, to relax the region’s strict abortion laws. ‘By contrast, as a result of Zika, in Latin America people are now giving some thought to abortion and even considering elective abortions,’ she says. ‘It’s very strange that these two parts of the world have completely polar positions.’
In light of the health risks the Zika virus poses for pregnant women and their unborn children, a legal challenge has been brought to Brazil’s Supreme Court to give women infected with the virus the option to terminate the pregnancy. It is also calling for greater protection for children that have microcephaly, a rare condition linked to the virus which causes babies to be born with abnormally small heads and incomplete brain development.
Northern Ireland is another country where abortion continues to provoke strong debate. Unlike the rest of the UK, terminating pregnancy there is only permitted in exceptional circumstances and a Belfast High Court ruling in November 2015 found that the country’s restrictive abortion laws were ‘incompatible with human rights’.
When pressed on the issue during a filmed interview at the IBA Annual Conference in Washington DC in September 2016, First Minister Arlene Foster told Global Insight she was keen to see how guidance on abortion for health and social care professionals published since the ruling had been ‘working in reality on the ground’.
As well as establishing a governmental working group on fatal foetal abnormality – which was due to present its findings to the Northern Ireland Executive towards the end of 2016 – Foster stressed that abortion is currently available to women in Northern Ireland in certain cases. ‘Sometimes people say that termination is not available, [but] it is if the woman’s life is in danger or indeed if she’s going to suffer mentally in a way that is going to bring her to a point that she is in a very, very bad place,’ she says.
Several recent high-profile cases have underlined the need for Northern Irish women to have access to abortion without having to resort to travelling to Great Britain for a private procedure or purchasing pills illegally online. In November, Scottish First Minister Nicola Sturgeon said she was looking into whether women from Northern Ireland could access safe and legal abortion in Scotland under the National Health Service.
However, Foster said legal arguments around abortion would not be influenced by isolated cases: ‘From time to time these cases come to the fore and I think what’s important for us as legislators is that, whilst of course we take [them] into consideration, we don’t make laws to deal with one instance. We look at all of the consequences and take into account what that will mean for us as a society. I hope that when the working group brings forward its recommendations then at least we’ll be better informed about all of the consequences around [fatal foetal abnormalities].’
In the US, many of President-elect Donald Trump’s policy positions have been difficult to predict based on his election rhetoric. However, abortion is an area in which he has been particularly outspoken, even going as far as to say he wants to overturn Roe v Wade – the 1973 Supreme Court ruling that enshrined in US law a women’s right to have an abortion.
Baroness Helena Kennedy QC, Co-Chair of the IBAHRI, condemns the comments, saying they would be a huge step backwards for women’s rights in the country. ‘He intends appointing a judge to the Supreme Court who is opposed to women's freedom of choice, a right that is fundamental to reproductive freedom and a woman's autonomy,’ she says. ‘His whole discourse on women suggests a man who does not respect the human rights of women, which should be a source of alarm.’