Abortion law change: Is Northern Ireland really next?

On the 29th of this month, Sarah Ewart will appear before the High court in Belfast to present her case that women in Northern Ireland should have access to rights enjoyed by women in all other parts of the United Kingdom.

Ewart is bracing herself – this appearance, while demanding, will be infinitely less agonising than other ordeals she has been through. Five years ago,  aged 23, the Belfast woman travelled to an abortion clinic in England to terminate a much wanted pregnancy that was otherwise going to end with the birth of a baby with a foetal abnormality.

The baby’s brain had not developed and it had no skull. By the time she had gone to full term, it would either be already dead, or would die shortly after birth.

“All I kept thinking was, ‘Our baby has no brain, she cannot live’. I simply could not face continuing with the pregnancy,” she says. “I was totally devastated.”

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Her distress was compounded when she learned she would not be able to have a termination in a Northern Irish hospital because Britain’s relatively liberal 1967 abortion Act was never extended to the North, which instead applies an 1861 law banning abortion in almost all circumstances, including rape, incest and fatal foetal abnormality. It provides for severe penalties including life imprisonment.

"I hope that this case will ultimately mean that I, and other women like me, will no longer have to travel to England, away from the care of the doctors who know us, and away from the support of our family and friends when we need them most, to access the healthcare I needed," Ewart tells The Irish Times.

Ewart has been campaigning for change since her own tragic experience. She took the decision to bring a judicial review after the supreme court found last year that the law in Northern Ireland breached the European Convention on Human Rights. The case had been brought by the Northern Ireland Human Rights Commission but the supreme court rejected the case for change on a technicality, ruling that an individual who had direct experience under the legislation would have to bring a case. Ewart stepped forward.

“I shouldn’t have to go through court case after court case to force the UK government to do what they know is right,” she says.

Ewart has mixed feelings about the new law allowing abortions to be performed in the Republic. She is pleased and relieved for the women who will benefit, but the isolation of women in the North is now starker than ever. “If the Irish Government can do it, why can’t the UK government? We deserve change too,” she says.

Praise

Ewart has the support of her family, and is full of praise for the team of professionals who have backed her – Amnesty NI's campaigns manager, Grainne Teggart, has been by her side throughout this five-year ordeal, and she is represented by lawyer Darragh Mackin.

Teggart accused the British government of “a cruel betrayal of women”. She speaks of another case of a woman who was too ill to travel to England and was forced to give birth to a decomposing foetus.

Amnesty is also involved in the case of a woman who faces prosecution because in 2013 she obtained abortifacient pills online for her 15-year-old daughter. The child had been involved in a physically and mentally abusive relationship and had turned to her mother for help when she discovered she was pregnant. After the termination, a medical professional reported the mother to the Police Service of Northern Ireland, which referred the matter to the North’s public prosecution service. The woman challenged the service’s decision to prosecute her.

All this woman did was to help her daughter access...this is an obvious and cruel injustice

The case was heard in November last and a ruling is due imminently. She spoke at the time of the hearing about the “five years of agony” she has endured while waiting for the case to be heard.

“All this woman did was to help her daughter access abortion pills that are prescribed free on the National Health Service in every other part of the UK,” says Teggart. “This is an obvious and cruel injustice.”

Legislate for home use

Last year, the UK government announced it would legislate to allow for the home use of abortion pills – however it has emerged that Northern Irish women are specifically excluded. They can neither take pills in England, because it is not “home” nor at home in Northern Ireland.

The secretary of state for Northern Ireland, Karen Bradley, has claimed that Westminster is powerless to change the law in Northern Ireland since it is a devolved matter. The Department of Foreign Affairs in Dublin told The Irish Times this week the Government was aware of the "ongoing focus" in the North on abortion services but that as it was "a devolved issue" the next steps in relation to the supreme court ruling would be a matter for the authorities in the UK.

“This is an important and sensitive issue and is a compelling example of the urgent need for the devolved power-sharing institutions of the Good Friday agreement to operate,” a Department of Foreign Affairs spokesperson says.

Teggart accuses Bradley of “hiding behind devolution” and says parliament is sovereign and that the absence in the past two years of a devolved administration in Belfast means the onus is on Westminster to legislate.

The Irish and British governments should be working closely together to ensure that women in Northern Ireland are not left behind

The DUP, upon which Prime Minister Theresa May’s government depends to remain in power, insists that the 1861 legislation remains in place and has described it as one of its “red line” issues.

Amnesty also rejects the Irish Government’s stance, arguing that two years after the collapse of Stormont there is not even a talks process in place. “The Irish and British governments should be working closely together to ensure that women in Northern Ireland are not left behind and can access free, safe and legal abortion without having to board a plane,” says Teggart.

Public opinion is on Amnesty’s side on key issues, with 65 per cent of adults in the North stating in a poll carried out last year by the organisation that they agree that abortion should not be regarded as a crime, and 66 per cent believing that in the absence of a devolved administration, the parliament at Westminster should change the law.

Northern campaigners have gained considerable support at Westminster. Last October MPs voted that the secretary of state should issue guidance on how to deal with the human rights deficit identified by the supreme court.

MPs also voted to repeal the Northern Irish law using a backbench Bill. However, the government declined to give it parliamentary time.

Labour MP Stella Creasy has written to both the British and Irish governments asking for action and citing the responsibility shared by the two governments to ensure that the commitment to human rights in the North made as part of the Belfast agreement are upheld.

Creasy successfully lobbied for women from Northern Ireland to have abortions paid for, and for a means-tested travel grant. She said last week that the new year saw these women “left behind twice”, with the introduction of the new legislation in the Republic, and the UK ruling on abortion pills.

There is a range of practical and ethical issues in relation to Northern women. If we provide pills and the woman goes back to the North to take them she will be breaking the law

Teggart points out that the most vulnerable women are the most disadvantaged – those who have experienced domestic violence, those who are undocumented, children who cannot fly without being accompanied by an adult, and women with health complications.

“Whatever deals the PM does with the DUP to stay in power we will not rest until abortion is free, safe, legal and local for everyone in the UK,” Creasy says.

Last week the Irish Family Planning Association revealed it would have to charge €450 to women from Northern Ireland who wished to access a termination in the Republic. The figure is based on estimates provided by the Department of Health.

The HSE confirmed that, while the service was free for women resident in the Republic, those in the North would have to pay. "The Minister has stated that he will examine the possibility of extending eligibility for women from Northern Ireland," a HSE spokesperson has told The Irish Times. The department did not respond to a request for comment.

Niall Behan, chief executive of the Irish Family Planning Association, criticises the Government’s position. “The new system was set up without considering women in the North,” he says. “Expectations have been raised and promises made without any processes being put in place. Cost is clearly a barrier but it is not the only one.

“The local access model of care is based on a range of assumptions about the availability of local services, and in the North there is a completely different system.”

Behan says there is a range of practical and ethical issues in relation to Northern women. “If the doctor wants her to have an ultrasound, where will that take place and who will pay? If we provide pills and the woman goes back to the North to take them she will be breaking the law there,” he says.

The association has been working closely for years with the Northern Ireland Family Planning Association. “Our shared position is to advocate for abortion rights North and South,” he says.

We need our southern sisters to show their solidarity with us. The British government is not providing the healthcare we need. I am Irish. I need my own Government to step up

Feminists from the North played a significant role in backing the Repeal the Eighth movement in the Republic. Following its success, activists in the Republic vowed: “The North is next.”

There was considerable anger last week when the substantial cost for Northern women emerged. “I was disgusted. It will be cheaper for women to continue to endure the shame and stigma of travelling to England,” said long-time campaigner Maeve O’Brien from Co Tyrone.

“Women of every creed and code took part in the campaign especially around the Border counties. We now need our southern sisters to really show their solidarity with us. The British government is not providing the healthcare we need. I am Irish. I need my own Government to step up. It hasn’t done enough.”

Mairead Enright of Lawyers for Choice says campaigners need to continue to support Northern activists, as well as insisting that the government exerts diplomatic pressure on its UK counterpart.

Sarah Ewart says that whatever happens in the Republic, she will not stop campaigning for services in the North. “I would ask those in power to consider what it’s like to be in a woman in Northern Ireland and stop ignoring the devastating reality of our law,” she says.

“At the end of the day, I am an ordinary woman who suffered a very personal family tragedy, which the law in Northern Ireland turned into a living nightmare.”

* This article was amended on January 12th  2019