Excerpted from published articles, by Marge Berer
PHOTO: David Young/PA in the Guardian 28-10-21
Background
Not long ago, a colleague contacted me who was looking for examples of how to involve international human rights bodies in countries where activists are seeking support for decriminalising their national abortion laws. The conversation led to the case of Northern Ireland which, although it is part of the United Kingdom, had a highly restrictive abortion law until 2018 – far more restrictive than England, Scotland and Wales, whose laws were reformed in 1967 — although abortion was not decriminalised. I asked a Northern Irish colleague, who was closely involved in what happened, if she would share some of the documentation that was published and how the involvement of CEDAW — the UN Committee on the Elimination of Discrimination Against Women — contributed to abortion law reform in Northern Ireland. Interestingly, what happened also changed how CEDAW now addresses the issue of abortion laws that violate women’s rights. They have since become far more involved in abortion law reform than they had been previously.
This report, based on information from the published references listed below, attempts to summarise what happened and why. This is followed by excerpts from the CEDAW recommendations of 6 March 2018 itself, which were the basis of the framework for lawful abortion services in Northern Ireland, which came into effect on 31 March 2020.
The long-term goal
In Canada, senior gynaecologist Henry Morgenthaler opened illegal abortions clinics in several Canadian provinces and openly provided illegal abortions. He was put on trial and his case was appealed until it reached the Supreme Court of Canada. The outcome of the case was that abortion has not been included as a crime in the criminal code of Canada since the judgement of 1988, when the then Chief Justice Brian Dickson wrote: “Forcing a woman, by threat of criminal sanction, to carry a fetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman’s body and thus a violation of her security of the person.” (R v Morganthaler, 1988)
Across the world, governments have been under pressure both from national and international abortion rights movements and several UN human rights bodies to decriminalise abortion completely. But no other country to date has supported the right to safe abortion to this extent in the years before or since that 1988 ruling.
This report summarises what happened in Northern Ireland, one of the four states that make up the United Kingdom, where CEDAW played a leading role in changing the law, not least due to the absence of the Northern Ireland Assembly at crucial moments.
Central to this history was the fact of NI women being able to access abortion pills online, and that abortion rights activists defended their right to do so. This played a major part in how and why everything changed in NI, especially when the NI police began investigating women and prosecuting some of them under the 1861 Offences Against the Person Act.
The existence of abortion pills had become widely known in NI by 2008 via a BBC Spotlight programme about the unsuccessful attempt by activists in London to get the UK Parliament to amend the abortion law in all four UK states. The programme reported that Emergency Departments in Belfast hospitals had said women were accessing abortion pills online, which they claimed represented a return to backstreet abortion. The BBC journalists obtained pills from several websites themselves and sent them for analysis. The analysis found that the pills sent by two of the websites were paracetamol, not abortion pills at all, but confirmed that those sent by Women on Web were indeed abortion pills.
Over the next decade, the numbers travelling from NI to British clinics for aspiration abortions dropped as more and more women bought pills online. To try and stop this trend, two NI Assembly members proposed a bill in 2013 to make abortions legal only if provided in an NI hospital. This led to immediate opposition and a petition by abortion rights advocates in which more than 100 women said that they and hundreds of others had used abortion pills outside the health service. The bill was dropped. By 2018, at least six websites were providing telemedical access to abortion pills and to information and support on how to use the pills safely. All this of course undermined the claim by anti-abortion advocates that NI was “abortion free” and so did not need a new law.
An interesting research report studied “the differences before abortion was decriminalised in Northern Ireland between women in Northern Ireland who accessed abortion pills online, and women in Scotland who could access abortion pills legally through the National Health Service”. Fear of being caught by the police, fear of being “found out” by others in their lives who may or may not have supported them having an abortion, and fear of needing medical help they felt unable to access because what they were doing was illegal – all these fears were expressed by the Northern Irish women, but not the Scottish ones. Yet the women in both places said they did not tell anyone about their abortions unless they had to, as they were afraid of stigma and condemnation, and they did not wish to be judged.
“Despite the damaging impact of criminalisation, abortion is rarely considered within criminology. This reflects the historical marginalisation of women’s experiences within the discipline itself, but also the justified insistence of reproductive rights scholars and activists that abortion is primarily a healthcare issue.“
In Northern Ireland, a number of civil society groups, including two abortion rights advocacy groups, approached CEDAW in 2010, asking the Committee to initiate an Inquiry under the Optional Protocol into the lack of abortion rights in NI. They submitted a detailed paper outlining the very restricted access to legal abortion for Northern Irish women and the impact that had on women’s rights generally in the region. Incredibly, looking back, it was five years before CEDAW even responded, something that is hard to believe today. Yet up to that point, CEDAW had had almost no involvement in the kinds of cases it has taken on since its success with Northern Ireland.
The main reason why CEDAW finally did get involved was because Northern Irish women had begun to obtain abortion pills illegally through the internet from Women on Web, Women Help Women and other sources. In 2015, it emerged that some women had been prosecuted under the 1861 Act for using pills to cause their own abortions, receiving suspended sentences. There was outrage among activists, particularly following the case of the mother of a 15-year-old girl who bought abortion pills online for her daughter, which received national and international publicity. These cases, in turn, spurred CEDAW to get involved.
The CEDAW Inquiry was carried out under what is called the Optional Protocol of the CEDAW Convention. This protocol contains two enforcement measures meant to be used by CEDAW when national governments refuse to put a stop to national violations of women’s human rights that CEDAW has identified, which was happening quite regularly. The most valuable of the two enforcement measures – called the inquiry procedure – is when CEDAW carries out an in-depth inquiry themselves into the policies of the country concerned, in search of a way to enforce the proposals they have made to the government concerned to address violations of women’s human rights.
Before the Northern Ireland case, the inquiry procedure had been used previously by CEDAW only three times. The first time was regarding “grave, widespread and systematic violence against women in Mexico”. The second was concerning a “high number of missing and murdered indigenous women in Canada”. The third was a summary report on “the inaccessibility of contraceptives for women in Manila, Philippines”. The inquiry procedure had otherwise languished for 14 years. It was only used for the fourth time in 2018 in the case of Northern Ireland. In this case, and for the first time for CEDAW, the issue was lack of access to legal abortion.
The Democratic Unionist Party (DUP), then the majority party of government in Northern Ireland, was (and remains) very anti-abortion, but due to conflicts between themselves and other NI parties, the Northern Ireland Assembly had stopped sitting at all. Following the landslide vote in the Republic of Ireland to repeal the anti-abortion clause in its Constitution and legalise abortion, English Labour MP Stella Creasy used the Inquiry Report from CEDAW to agitate for change. The Westminster Women and Equalities Committee travelled to Northern Ireland to see for itself whether the CEDAW Inquiry report was correct in its findings. In 2019, Creasy used the opportunity presented by the lack of a government in NI to include in the Northern Ireland (Executive Formation) Bill a provision which insisted that: “unless there was a functioning NI Assembly on the 21 October 2019, the UK Secretary of State for Northern Ireland had to comply with international human rights obligations and implement the CEDAW recommendations.
“Those [obligations] stated that abortion should be decriminalised in Northern Ireland. On 24 July 2019, the Northern Ireland (Executive Formation) Bill received Royal Assent and became an Act of the UK Parliament. As such, on the 22 October 2019, in the absence of a functioning NI Assembly, Sections 58 and 59 of the Offences Against the Persons Act 1861 [which still apply in England, Scotland and Wales to this day] were repealed in NI and criminal sanctions for abortion in NI were removed.
This meant that criminal charges could no longer be brought against individuals having an abortion or against a qualified medical professional providing abortion services. After 22 October 2019, there would be a period of consultation on a regulatory framework for abortion in Northern Ireland, which had to come into force by 31 March 2020.”
This was a major change indeed.
“Between 1970 and 2015, at least 61,314 women had travelled from NI to Great Britain (GB) to access abortion [many more had given an address in England and were not counted]. Abortions during those years for women with NI addresses had to be self-funded and were not available through the (free) National Health Service (NHS). Only since 2017, have NI women been granted free access to abortion services in GB, a development that had seen a marked increase in the number of women giving NI addresses seeking abortion in Britain — increasing from 724 in 2016 to 1,053 in 2018.
However, research at Ulster University, funded by the Economic and Social Research Council, found that significant barriers to travel from NI for abortions remained. The principal barriers were time off work and childcare; those at the lower end of the labour market told researchers they could not afford to take time off. Women in controlling or abusive relationships, young women and girls and those living in rural areas with poor transport links may have found travelling impossible, while asylum seekers and refugees may have been unable to meet visa requirements that forbade them leaving NI. In addition, women with complex physical or mental health needs may not have been fit to travel or may have needed specialist hospital care, which is difficult to access without a referral from a consultant.”
All these were reasons why it was crucial to make abortion legal in Northern Ireland itself. In preparation for writing the new law, discussions took place across Northern Ireland and with others in the Republic of Ireland and the rest of the UK among abortion rights advocates, healthcare providers and policymakers.
SOURCES
– Bridging the enforcement gap? Evaluating the Inquiry Procedure of the CEDAW Optional Protocol. by Dr Catherine O’Rourke. American University Journal of Gender, Social Policy & the Law. 2019;27(1), Article 1.
– Goretti Horgan, Linda Moore. The gendered harms of criminalisation: Buying abortion pills on the internet in Northern Ireland. In: Masson and Booth, Routledge Handbook of Women’s Experiences of Criminal Justice, London, Routledge, 2023. https://www.routledge.com/The-Routledge-Handbook-of-Womens-Experiences-of-Criminal-Justice/Masson-Booth/p/book/9781032064314
– Goretti Horgan, Ann Marie Gray and Leanne Morgan. Developing policy for a full reproductive health service in NI. ARK Policy Brief. October 2019.
– Goretti Horgan. The role of abortion pills in decriminalisation. Chapter in: Bloomer F and Campbell E. Decriminalising Abortion in Northern Ireland, Vol 2: Allies and Abortion Provision. Bloomsbury, London, 2022. https://www.bloomsbury.com/uk/decriminalizing-abortion-in-northern-ireland-9780755642571/
Acknowledgements
Heartfelt thanks to Goretti Horgan for: 1) sharing the referenced articles and documents excerpted above that talk in detail about the background to the abortion law reform in Northern Ireland involving CEDAW and 2) for her welcome editing of the excerpted text. She would like to urge everyone to recognise that this history and the documents describing it are not templates that can always be copied but sources of ideas on how to proceed, since every national situation, and how to make change happen, is different.
Compiled, summarised and excerpted by Marge Berer, 14-17 July 2024. If you note any errors, please write to me at: info@safeabortionwomensright.org to suggest corrections and additions for publication on 26 July.