The announcement that Marie Stopes Northern Ireland is to open a sexual and reproductive health centre in Belfast has caused huge controversy. The press release states that the centre will provide a wide range of sexual and reproductive services including:

“… short and long-term contraceptive options (including condoms, injection, IUD); emergency contraception; HIV testing; STI testing and treatment; ultrasound scanning; and medical abortion up to nine weeks’ gestation.”

The statement goes on:

“Our provision of early medical abortion will be the same service that is currently available from the NHS in Northern Ireland, available only within the current legal framework, when the life of the pregnant woman is at immediate risk and / or if there is a long term or permanent risk to her physical or mental health.”

Some recent history

To say that the law in Northern Ireland relating to termination of pregnancy has a troubled and complex history is a major understatement: for the detail see Cranmer: ‘Abortion: An Irishwoman’s Right to Choose?’ 166 Law & Justice 5–27.  As noted in an earlier post, the Abortion Act 1967 does not extend to Northern Ireland, where termination of pregnancy remains illegal in principle under ss 58 and 59 Offences Against the Person Act 1861, subject to s 25 Criminal Justice Act (Northern Ireland) 1945.

In 2003 the Family Planning Association, Northern Ireland, decided to challenge the Northern Ireland Executive’s failure to issue guidance or advice to women and clinicians on the availability and provision of termination of pregnancy services and in FPANI v Minister for Health, Social Services and Public Safety [2004] NICA 37, 38 & 39 (which, for some unfathomable reason, is posted as three separate documents on BAILII) the Court of Appeal decided that in respect of women seeking lawful termination the Minister had indeed failed to comply with the duty under Article 4 Health and Personal Social Services (Northern Ireland) Order 1972

“… to provide or secure the provision of integrated health services in Northern Ireland designed to promote the physical and mental health of the people of Northern Ireland through the prevention, diagnosis and treatment of illness”.

The reason advanced by the Court for this conclusion was that the Minister had neither inquired into the adequacy of termination services in Northern Ireland nor issued guidance to health professionals involved in termination of pregnancy (including aftercare), to those working for concerned organisations and to women seeking termination. The Court decided that guidance should be issued on the law relating to the provision of termination, referral procedures, informed consent, aftercare services for women whose pregnancies had been terminated (whether in Northern Ireland or, insofar as practicable, elsewhere) and the right of conscientious objection.

Unsurprisingly, that decision was highly controversial; and in 2007, on the motion of Democratic Unionist MLAs Jeffrey Donaldson and Iris Robinson, the Assembly resolved:

“That this Assembly opposes the introduction of the proposed guidelines on the termination of pregnancy in Northern Ireland; believes that the guidelines are flawed; and calls on the Minister of Health, Social Services and Public Safety to abandon any attempt to make abortion more widely available in Northern Ireland” (see Northern Ireland Assembly Minute of Proceedings Monday 22 October 2007 item 6.1).

In that same month, in response to the judgment in FPANI, the Department of Health, Social Services and Public Safety published a consultation draft of its proposed Guidance on the Termination of Pregnancy: The Law and Clinical Practice in Northern Ireland which was followed by a definitive version in March 2009. Pro-life activists promptly resorted to judicial review of its content; and in Society for the Protection of Unborn Children, Re Judicial Review [2009] NIQB 92 (30 November 2009) the SPUC sought an order of certiorari to quash its publication, a declaration that the decision to publish had been unlawful and an order that the Department rescind the Guidance and remove it from its website or, alternatively, vary it in accordance with the judgment of the court.The SPUC argued that the draft failed to acknowledge the presumptive illegality of abortion and was based on the misleading premise that each Health and Social Care Trust had to ensure that its patients had access to termination of pregnancy services: the SPUC’s contention was that, at the very least, that the Guidance had to be qualified by adding ‘where necessary in order to preserve the life of the patient’.

Girvan LJ rejected most of the SPUC’s arguments. Where the text did fall down, however, was on the issues of non-directive counselling and conscientious objection on the part of medical staff. Section 5.9 stated that:

“In terms of best practice, the purpose of counselling for women considering termination of pregnancy is to offer support in a non-judgmental and non-directive way to enable them to make an informed choice about termination or its alternatives.”

The SPUC argued that this was perverse, given that abortion was in principle illegal, while the Department contended that the entire tenor of the Guidance made clear that abortion was only lawful in strictly limited circumstances. Girvan LJ concluded that the text did not provide the necessary clarity for professionals in carrying out their lawful duties and should be reconsidered:

“The Department should … consider what guidance should be given to deal with the situation … where pregnant women who are seriously concerned about the continuation of their pregnancy want to have an abortion but do not fulfil the criteria which must be satisfied in Northern Ireland … to have an abortion lawfully…” (para 38).

He also concluded that Section 4.1 of the Guidance was simply inaccurate in stating that ‘”there is no legal right to refuse to take part in the termination of pregnancy”. There were also other, more trivial inaccuracies. Overall, however, he ruled there was no need for the Guidance to be quashed; instead, it should be withdrawn with a view to being reconsidered by the Department taking account of the contents of this judgment” (para 48).

In February 2010 the Department reissued the Guidance yet again in draft – which is how it remains. In September 2012 it was announced that FPANI had been granted leave to seek a judicial review of the Department of Health’s failure not to publish the necessary definitive version and that the application would be listed for January 2013.

Political and public reaction

In an interview in the Irish Times, Dawn Purvis, previously an MLA and Leader of the Progressive Unionist Party and now the Programme Director of Marie Stopes, stated categorically that

“… we have taken legal advice, and we will be operating within the current legal framework: when the risk to a woman’s life is determined to be a permanent, long-term and serious threat to her physical or mental well-being.”

The problem is that there are clearly many people in all strands of Northern Irish society who see the opening of the Marie Stopes clinic as the thin end of the wedge. The position of the Roman Catholic Church is well known: what might not be so well known, however, is the opposition to termination of pregnancy from many in the Protestant community in Northern Ireland.

Jim Allister QC, an MLA, Leader of Traditional Unionist Voice and a former member of the Democratic Unionist Party, told the BBC that he believed that Marie Stopes was attempting to extend the availability of abortion, suggesting that the organisation was pro-choice, “except for the unborn child, who has no choice, in their view, and who should be put to death, because that’s what abortion is”. Moreover, in an article on the TUV website he argues that:

“[i]f, as Marie Stopes claim, their centre will operate within the law there is no need for it. Official Department of Health figures show that the average number of lawful terminations in Northern Ireland is 43 per year.”

The Presbyterian Church’s Director of Social Service, Lindsay Conway, told the Belfast Newsletter that the new clinic had to operate within the law:

“The Presbyterian Church would strongly oppose any attempt to undermine or liberalise the abortion legislation as it currently stands in Northern Ireland that termination of human life at any stage within the womb should not be considered except under the most extreme circumstances.”

Conclusion

Northern Ireland is in many respects much more socially-conservative than Great Britain – and though it is an integral part of the United Kingdom its law on termination of pregnancy is totally out of line with the provisions of the Abortion Act 1967. Moreover, as the furore over the opening of the Marie Stopes clinic has amply demonstrated, there is no great enthusiasm for liberalising the law on termination of pregnancy, at least among politicians and clergy.

So the question one cannot help asking oneself is this: what would happen if an atheist Northern Irishwoman (or, indeed, an atheist Englishwoman resident in Belfast) demanded the same rights of access to termination services at her local hospital as her fellow-citizens enjoy in Great Britain – and the case ended up in Strasbourg?

The Grand Chamber was prepared to accord a fairly broad margin of appreciation to the Government of Ireland in respect of the first two applicants in A, B and C v Ireland 25579/05 [2010] ECHR 2032 (16 December 2010). Might it be prepared to given an equally broad margin of appreciation to a part of the United Kingdom with a devolved administration? The answer to that question is by no means certain.