by the Committee on the Elimination of Discrimination against Women, 8 March 2018, CEDAW/C/OP.8/GBR/1, https://digitallibrary.un.org/record/1480026?ln=en&v=pdf
[Please note that the full document contains all consecutively numbered paragraphs. Only some of them are included here due to length.]
Introduction
1. On 9 December 2010, CEDAW, the Committee on the Elimination of Discrimination against Women, received information from several organizations pursuant to article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. The sources allege that the United Kingdom of Great Britain and Northern Ireland has committed grave and systematic violations of rights under the Convention owing to the restrictive access to abortion for women and girls in Northern Ireland.
Submission by the Sources of Information
3. The sources submit that, in Northern Ireland, assisting with or procuring an abortion is criminalized, punishable by a maximum sentence of life imprisonment, and the availability of abortion is highly restricted. They allege a failure on the part of the United Kingdom, inter alia: (a) to establish a comprehensive legal framework to protect and guarantee women in Northern Ireland the right to abortion; (b) to ensure that women in Northern Ireland are not exposed to the health risks of unsafe abortion; and (c) to address social, practical and financial obstacles to access to abortion, obstacles that disproportionately affect rural women. The sources allege that the legal framework on abortion discriminates against women in Northern Ireland. In addition, access to abortion is impeded by the prevailing anti-choice rhetoric in churches, schools and local politics.
4. On 20 January 2014, the United Kingdom submitted its observations on the request for an inquiry, indicating that it was lawful to perform an abortion in Northern Ireland when necessary to preserve the woman’s life or when there existed a risk of real and serious long-term or permanent adverse effects to the woman’s physical or mental health. It noted that, although procuring an abortion was criminalized, prosecutions were rare, and residents of Northern Ireland could travel to other countries forming part of the United Kingdom, although they were not entitled to coverage by the National Health Service and must pay privately, or internationally, to gain access to abortion services where they were available. The United Kingdom denied any breach of its obligations and asserted that a revision of its legislation was not envisaged.
5. In November 2014, the United Kingdom submitted information in follow-up to the concluding observations of the Committee on its seventh periodic report (CEDAW/C/GBR/CO/7/Add.1). At its sixtieth session, from 16 February to 6 March 2015, the Committee considered that the United Kingdom had not implemented its recommendation to decriminalize abortion and had only partially implemented its recommendation to expand the grounds for legal abortion, following the recommendation contained in the consultation paper published on 8 October 2014, that amendments be made to legislation to allow abortion in cases of “lethal abnormality of the foetus”.
6. From its 57th to 61st sessions, the Committee examined all information received and found the allegations to be reliable and indicative of grave or systematic violations of rights under the Convention.
7. The United Kingdom, on 29 January 2016, agreed to the visit of the designated [CEDAW Committee] members to Belfast and London. The visit was conducted from 10 to 19 September 2016.
Findings of fact
1. De facto limitations on access to legal abortions in Northern Ireland
(a) Institutional and geographical limitations
In the period 2015–2016, only 46 abortions were performed in public hospitals in Northern Ireland, yet, in stark contrast, 724 women travelled from Northern Ireland and procured an abortion in England. The designated [Committee] members learned from the outset that the accessibility of both medical and surgical abortion was limited by institutional and geographical factors. All services were concentrated in two facilities located in Belfast: the Royal Maternity Hospital, the only public facility currently performing abortions in very limited cases of fatal foetal abnormality; and the Marie Stopes International clinic, the only private facility performing medical abortions until 9.4 weeks’ gestation exclusively under the mental and/or physical health exception….
(b) Lack of clarity on when an abortion can be performed legally. Health professionals are equally liable to a penalty of life imprisonment for aiding and abetting the procurement of an abortion. A consultation on draft guidance for health professionals on the circumstances in which an abortion can be performed legally was conducted in 2013. Issued by the Department of Health, Social Services and Public Safety, the stated purpose of the draft guidance was “to guide clinicians on the application of the very strict and narrow criteria that are consistent with the law” ….
15. The Committee is of the view that the finalized guidance of the Department of March 2016 does not clarify the circumstances in which abortions are lawful in Northern Ireland. Health professionals are responsible for assessing, on a case-by-case basis, whether a woman’s clinical circumstances meet the legal criteria for an abortion. The guidance recommends that two doctors with appropriate skills and expertise undertake the assessment. In practice, no clinicians are designated, and no protocol exists to guide the assessment. The designated members were informed that the risk of the penalty of life imprisonment for interpreting the law incorrectly discourages clinicians from making a referral for abortion….
16. It is indicated in the guidance that “the impact of foetal abnormality on a woman’s physical or mental health may be a factor to be taken into account when a health professional makes an assessment of a woman’s clinical condition and recommends options for her ongoing care”. However, it does not clarify whether abortion is an option….
17. The downward trend of legal abortions performed in Northern Ireland since 2013 is attributable to the increasing unwillingness of clinicians to make referrals for or to perform an abortion, owing to increased fear of criminal liability. The designated members learned that, between 2003 and 2008, abortions were available in cases of fatal fetal abnormality, because clinicians interpreted the law favourably using the mental health exception. The subsequent increased scrutiny of abortions by authorities resulted in fewer abortions being performed in public hospitals. In 2009, the then Minister of Health launched an investigation into every abortion performed in cases of fatal fetal abnormality under the mental health exception. Between 2011 and 2012, the Minister requested medical practitioners to record personal details about the women and the reasons for the abortions….
18. The Royal College of Obstetricians and Gynaecologists, the Royal College of Midwives and the Royal College of Nursing in Northern Ireland have described the draft guidance that was consulted upon in 2013 as intimidating to both women and health-care professionals. In their view, it creates uncertainty and fear, resulting in a chilling effect on the performance of abortions. The Committee finds that the finalized guidance of 2016 perpetuates such intimidation….
19. Inability to gain access to services owing to harassment by anti-abortion protesters….
20. In conclusion, the Committee finds that, the legal provision for abortion in very limited circumstances notwithstanding, de facto limitations render access to abortion virtually impossible….
21. Reality of illegal abortions in Northern Ireland. Since 2000, the police in Northern Ireland have investigated more than 30 cases of individuals suspected of procuring an abortion. Between 2006 and 2015, they made 11 arrests relating to illegal abortion. Between 2011 and 2016, five people were questioned and arrested for possession of abortifacients; two were convicted….
22. Information reveals a rise in the self-administration of medical abortions, which is criminal, by women unable to travel outside Northern Ireland and whose pregnancies are at less than nine weeks’ gestation. That upward trend is attributed to the presence of non-profit organizations providing early medical abortions outside the formal health-care system by means of telemedicine since 2006….
25. Access to abortion services in England — Between 1970 and 2015, 61,314 abortions in England were performed on residents of Northern Ireland. Some 16 per cent of all abortions performed annually on non-residents of England and Wales are provided to women from Northern Ireland….
27. Testimony revealed that the stress of undergoing an abortion outside Northern Ireland was compounded by logistical arrangements and the secrecy within which they must be made, ultimately having an impact on women’s mental health….
29. Noting the heavy financial, emotional and logistical burden, the Committee considers that such travel is not a viable solution for women….
30. [We] learned from women in Northern Ireland who had undergone an abortion outside Northern Ireland about the post-procedure mental anguish that they experienced. Women are discharged on the day of the procedure and often, to reduce expenses, immediately return to Northern Ireland, their vulnerable physical and mental state notwithstanding. Once they had returned, women described fearing community stigma and possible prosecution, and hence remained secretive about the abortion, including with their doctors. In addition to descriptions of feeling “dirty”, “shameful” or “pressured to just get on with it”, the women described how the culture of silence had an impact on their health. There is no systematic sharing of medical records between the abortion facilities outside Northern Ireland and doctors in Northern Ireland, nor do many women wish for their “abortion record” to be transferred. In cases in which women suffer post-procedure complications, lack of any acknowledgement that an abortion was carried out is therefore a barrier to their seeking and receiving appropriate medical care.
32. A significant source of stress for women who have undergone an abortion outside Northern Ireland is the transportation of fetal remains to Northern Ireland for emotional (bereavement), religious (burial) or medical (DNA testing for genetic abnormalities) reasons or as prosecutorial evidence in rape cases…. Northern Ireland faced difficulties in obtaining DNA analyses in England in cases of fatal fetal abnormality. They are therefore forced to return with fetal remains in order to have thorough tissue testing conducted to determine risk factors for future pregnancies. Testimony revealed that the absence of any established protocols regarding the transfer of fetal remains had resulted in women resorting to undignified transporting practices, including in coolers or hand luggage, at the mercy of airline personnel. Furthermore, no protocol exists on the reception of fetal remains by mortuaries in Northern Ireland. The situation recently led to the resignation of one of the only two paediatric pathologists in Northern Ireland….
Criminalization of abortion and its effect on women who find themselves in untenable or unplanned pregnancies
33. All the women who were denied access to safe abortion in Northern Ireland who were interviewed by the designated members conveyed their experiences of extreme vulnerability, physical and psychological stress, mental anguish, desperation and isolation in seeking appropriate medical treatment to terminate their pregnancy….
34. The Committee notes that the criminalization of abortion has a particularly adverse impact on women in situations of poverty. Compared with the rest of the United Kingdom, Northern Ireland has: (a) the highest fertility rate; (b) the highest and most persistent levels of child poverty; (c) a higher proportion of single-earner households; (d) lower wage rates; (e) the lowest living standards; (f) the highest childcare costs outside London; and (g) a higher prevalence of poor mental health. The Committee draws a link between the low control that women in Northern Ireland have over their fertility and the disproportionate risk of poverty faced by large families….
36. There is no exception allowing abortions in cases of rape or incest, not even when the victims are children….
37. Information transmitted to the designated members revealed the link between the country’s recent violent history and the very high rates of sexual abuse experienced by both women and men across Northern Ireland, with estimates that 1 in 4 residents suffer sexual abuse in their lifetime.
38. The designated members learned that the criminalization of abortion placed women and girls who were victims of rape or incest at risk of being treated as criminals themselves and had contributed to the under-reporting of rape, owing to fear of prosecution and conviction. No data exist on the number of pregnancies resulting from rape or incest or the number of victims seeking an abortion.
39. Exceptions allowing abortions are also not available in cases of fatal fetal abnormality. Numerous women recounted their extreme anxiety when, upon receiving a diagnosis of such an abnormality, they had to cope with both the shock of a pregnancy not proceeding as planned and being denied information on the options available to ensure their best health outcome, including on legal choices for abortion that existed outside Northern Ireland and the right to post-abortion care upon return….
41. Testimony abounds that the late diagnosis of a fatal fetal abnormality and lack of counselling on options for legal abortion results in delayed treatment, with the ensuing physical and psychological trauma for women, which some describe as torture. Women in such situations face severe stress in arranging all logistics within the allowed time limit for procuring a legal abortion outside Northern Ireland, which, in England, is if the pregnancy has not exceeded its twenty-fourth week. The more advanced the pregnancy, the more difficult travelling becomes, the more complex and costly the abortion and the higher the risk of post-abortion complications….
Social context of abortion in Northern Ireland
48. The Committee acknowledges the interconnectedness of the level of access to legal abortion and the sociopolitical and religious context of Northern Ireland, in particular the religious characterization of abortion as a sin. It recognizes that that context informs the positions taken by political parties on amending legislation criminalizing abortion, including the often-cited argument that it could destabilize the peace process or lead to “abortion on demand”.
49. Interviews with State and non-State actors in Northern Ireland revealed a lack of political will to change the status quo, epitomized by the Assembly’s rejection, in May 2016, of legislative amendments allowing abortion in limited cases of fatal fetal abnormality or sexual crime. The Committee notes attempts by authorities in Northern Ireland to further narrow access to legal abortion through threats to close the sole private abortion provider there.
50. The Committee finds that statements by authorities reinforce the characterization of abortion as a strictly moral issue rather than one of health and human rights…. Other statements by politicians and government officials, including the characterization of a woman’s primary role as that of mother, have reinforced gender stereotypes steeped in patriarchy, thereby contributing to the belief that it is acceptable to deny women reproductive choice.
Legal Findings
This next section takes up human rights obligations of decentralized systems such as the UK, in which some powers are devolved and others are not. But in spite of the fact that abortion matters were devolved to the four states of the UK, the Committee said in Notes 52-53 that:
“…the delegation of government powers did not “negate the direct responsibility of the State party’s national or federal Government to fulfil its obligations to all women within its jurisdiction”. Thus, the United Kingdom cannot invoke its internal arrangements (the Belfast Agreement) to justify its failure to revise the laws of Northern Ireland that violate the [CEDAW] Convention.”…
59. Criminal regulation of abortion serves no known deterrent value. When faced with restricted access, women often engage in clandestine abortions, including self-administering abortifacients, at risk to their life and health. In addition, criminalization has a stigmatizing impact on women and deprives them of their privacy, self-determination and autonomy of decision, offending women’s equal status, constituting discrimination.
Sections 60-67 take up State party’s obligations with regard to the sexual and reproductive health and rights of women under the Convention.
This is followed by, among other issues, the legitimate interest of the State in potential life of the unborn, about which CEDAW says:
68. Authorities in Northern Ireland argued that Northern Ireland recognized a right to life of the unborn through its criminal law on abortion. The Committee notes the holding of the Court of Appeal in Northern Ireland that “Bourne determined … that the foetus enjoyed protection under the criminal law subject to the qualification that the mother had a superior right. The foetus did not, therefore, have a right to life comparable to that of those who had been born.” [See Rex v. Bourne, Central Criminal Court, 18-19 July 1938] Under international law, analyses of major international human rights treaties on the right to life confirm that it does not extend to fetuses. Whereas the Committee acknowledges that the State may have a legitimate interest in “prenatal life”, criminalizing abortion does not further that purpose. World Health Organization data indicate a direct correlation between restrictive abortion laws and high rates of unsafe abortions, leading to high mortality and morbidity, and that bans or very restrictive abortion laws have no deterrent effect.
The Committee’s findings
The statement concludes with a lengthy summary of all the findings listed in the document and closes with several pages of recommendations and conclusions.
81. The Committee assesses the gravity of the violations in Northern Ireland in the light of the suffering experienced by women and girls who carry pregnancies to full term against their will owing to the current restrictive legal regime on abortion. It notes the great harm and suffering resulting from the physical and mental anguish of carrying an unwanted pregnancy to full term, especially in cases of rape, incest and severe fetal impairment, in particular fatal fetal abnormality. The situation gives women in Northern Ireland three deplorable options: (a) undergo a torturous experience of being compelled to carry a pregnancy to full term; (b) engage in illegal abortion and risk imprisonment and stigmatization; or (c) undertake a highly stressful journey outside Northern Ireland to gain access to a legal abortion. Women are thus torn between complying with discriminatory laws that unduly restrict abortion or risking prosecution and imprisonment….
83. The Committee finds that the State party is responsible for the following: (a) Grave violations of rights under the Convention, considering that the State party’s criminal law compels women in cases of severe fetal impairment, including fatal fetal abnormality, and victims of rape or incest to carry pregnancies to full term, thereby subjecting them to severe physical and mental anguish, constituting gender-based violence against women; (b) Systematic violations of rights under the Convention, considering that the State party deliberately criminalizes abortion and pursues a highly restrictive policy on access to abortion, thereby compelling women to carry pregnancies to full term, to travel outside Northern Ireland to undergo legal abortion or to self-administer abortifacients.
84. In the light of the foregoing and in line with relevant recommendations addressed to the State party by other United Nations bodies, the Committee refers to its previous concluding observations (see CEDAW/C/GBR/CO/7, paras. 50–51) and recommends the following to the State party [i.e. the UK], focusing on Northern Ireland:
85. The Committee recommends that the State party urgently:
(a) Repeal sections 58 and 59 of the Offences against the Person Act, 1861, so that no criminal charges can be brought against women and girls who undergo abortion or against qualified health-care professionals and all others who provide and assist in the abortion;
(b) Adopt legislation to provide for expanded grounds to legalize abortion, at least in the following cases:
(i) Threat to the pregnant woman’s physical or mental health, without conditionality of “long-term or permanent” effects;
(ii) Rape and incest;
(iii) Severe fetal impairment, including fatal fetal abnormality, without perpetuating stereotypes towards persons with disabilities and ensuring appropriate and ongoing support, social and financial, for women who decide to carry such pregnancies to term;
(c) Introduce, as an interim measure, a moratorium on the application of criminal laws concerning abortion and cease all related arrests, investigations and criminal prosecutions, including of women seeking post-abortion care and healthcare professionals;
(d) Adopt evidence-based protocols for health-care professionals on providing legal abortions particularly on the grounds of physical and mental health and ensure continuous training on the protocols;
(e) Establish a mechanism to advance women’s rights, including through monitoring authorities’ compliance with international standards concerning access to sexual and reproductive health, including access to safe abortions, and ensure enhanced coordination between the mechanism with the Department of Health, Social Services and Public Safety and the Northern Ireland Human Rights Commission;
(f) Strengthen existing data-collection systems and data sharing between the Department and the police to address the phenomenon of self-induced abortion.
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.