The case-law material first appeared in my article on “Abortion: An Irishwoman’s Right to Choose?” 166 Law & Justice (2011) 5–27; but what follows takes the story further.
In a recent post on God & Politics Edward Kendall asks Is the proposed change in Northern Irish abortion legislation to be welcomed? My suspicion is that he thinks that it is probably not. But there is another side to the argument: and what follows is an attempt to look at the issues primarily from a legal rather than a moral perspective.
The statute law
The Abortion Act 1967 applies only in Great Britain. In Northern Ireland, abortion remains in principle illegal under ss 58 and 59 Offences Against the Person Act 1861 (which, incidentally, is still the basic statute law in Ireland also), subject to s 25 Criminal Justice Act (Northern Ireland) 1945 which extended to Northern Ireland the provisions of the Infant Life (Preservation) Act 1929, as follows:
“25(1) Subject as hereafter in this sub-section provided, any person who, with intent to destroy the life of a child then capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit, of child destruction, and shall be liable on conviction thereof on indictment to penal servitude for life:
Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother.
(2) For the purposes of this and the next succeeding section, evidence that a woman had at any material time been pregnant for a period of twenty-eight weeks or more shall be prima facie proof that she was at that time pregnant of a child then capable of being born alive”.
After 1939 the impact of the 1861 Act was somewhat moderated as a result of Macnaghten J’s charge to the jury in R v Bourne  1 KB 687 to remember in reaching its verdict that Dr Bourne had performed an abortion on a rape victim under the age of fifteen “as an act of charity, without fee or reward, and unquestionably believing that he was doing the right thing” (at 690).
Even though it was an English case, the courts in Northern Ireland followed Bourne; and the acquittal had considerable influence on the development of the law in the Province, blunting the impact of the words “shall unlawfully administer to her” in s 58 of the 1861 Act and extending the reach of the saving in the 1945 Act. It came to be accepted that it was lawful to procure an abortion in good faith in order to preserve the life of the mother and that a jury was entitled to acquit in a situation where a doctor had believed on reasonable grounds and with adequate knowledge that continuation of her pregnancy was likely to wreck the woman’s physical or mental health.
Moreover, s 25 of the 1945 Act appears to leave doctors with considerable discretion. Because the prima facie proof under 25(2) as to whether or not a foetus is “capable of being born alive” is a pregnancy of twenty-eight weeks or more, cases up to the twenty-seventh week are a matter for individual clinical judgment. That places an enormous degree of responsibility on the individual practitioner –.and the issue of clinical judgment was an important factor in the decision of the Crown Prosecution Service not to prosecute the two doctors caught by the Telegraph‘s recent sting on gender-specific abortion (about which we posted at the time).
The modern case-law
The case-law suggests that, at least in recent years, the courts have tended to give a fairly generous interpretation to the kinds of circumstances that might affect the health of a woman forced to carry a pregnancy to term against her will.
In Northern Health and Social Services Board v F and G  NI 268 K, a pregnant fourteen-year-old ward of court who lived in a children’s home and was suspected of substance abuse had threatened suicide if she was not permitted an abortion. She had also attempted to induce her own miscarriage. K’s mother, who had not seen her since she was five and refused social workers’ requests to meet K, opposed the abortion: K’s father, however, had maintained contact and felt that the abortion should proceed. Sheil J concluded that an abortion would be in K’s best interests; however, he also noted that no consultant in Northern Ireland was prepared to carry out the abortion because of her mother’s opposition and their uncertainty about the state of the law on termination of pregnancy in Northern Ireland. K subsequently travelled to Liverpool for a termination.
In Northern Health and Social Services Board v A & Ors  NIJB 1 the Board applied for a declaration that it would be lawful to terminate the pregnancy of a severely mentally handicapped woman in the tenth week of pregnancy. Granting the declaration, MacDermott LJ considered the meaning of the phrase “for the purpose only of preserving the life of the mother” in s 25(1) of the 1945 Act and commented that:
“… ‘for the purpose only of preserving the life of the mother’ does not relate only to some life-threatening situation. Life in this context means the physical and mental health or well-being of the mother and the doctor’s act is lawful where the continuance of the pregnancy would adversely affect the mental or physical health of the mother. The adverse effect must however be a real and serious one and it will always be a question of fact and degree whether the perceived effect of non-termination is sufficiently grave to warrant terminating the unborn child” (para 5).
In Western Health and Social Services Board v CMB and the Official Solicitor  NI High Ct (unreported) Pringle J decided that termination would be in the best interests of a seventeen-year-old mentally handicapped girl who was twelve weeks pregnant and a ward of court. A gynaecologist and two psychiatrists gave evidence that S would suffer severely if her pregnancy continued, with a strong possibility of mental breakdown. The abortion was subsequently carried out in Northern Ireland. Similarly, in Re CH (a minor)  NI High Ct (unreported) a sixteen-year-old ward of court wished to have her pregnancy terminated and threatened suicide if forced to continue with it. On the basis of the medical evidence, Sheil J held that a termination would be lawful.
The challenge by the Family Planning Association of Northern Ireland
Given the perceived uncertainty of the law noted by Sheil J in Northern Health and Social Services Board v F and G, in 2003 FAPNI decided to challenge the Executive’s failure to issue guidance or advice to women and clinicians on the availability and provision of termination of pregnancy services. Kerr J dismissed the Association’s application at first instance; but in FAPNI v Minister for Health, Social Services and Public Safety  NICA 37, 38 & 39 [for some unfathomable reason the three judgments are numbered and listed separately on BAILII] the Court of Appeal agreed unanimously that the Minister had indeed failed to comply with the duty under Article 4 of the 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”.
He had not secured the provision of “integrated health services” to women seeking lawful termination because he had neither enquired into the adequacy of termination services 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 of Appeal therefore 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 was the subject of an adverse resolution by the Northern Ireland Assembly.)
The Guidance and the response by SPUC
In July 2009, 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 definitive Guidance 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  NIQB 92 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.
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: SPUC’s contention was that, at the very least, the phrase had to be qualified by adding “where necessary in order to preserve the life of the patient”. Moreover, the Guidance failed to recognise the rights of the unborn child, it failed to provide advice as to whether a child which might be aborted was capable of being born alive, it was inaccurate as to the law, it gave inadequate information for women considering abortion about obtaining a valid consent, it failed to give appropriate guidance on the offence of withholding information in relation to an illegal abortion and/or the duty to report an abortion thought to be illegal and it did not properly recognise the right of clinicians to decline to participate in abortion. The Department argued that it would be appropriate for the Court to give it a wide degree of latitude in deciding how the Guidance should be expressed.
Girvan LJ rejected SPUC’s argument that the Guidance had adopted the wrong starting-point. Read fairly and dispassionately, its first section made it “clear beyond peradventure” (para 12) that abortion was unlawful except in certain limited circumstances. He also rejected SPUC’s contentions that, because abortion was unlawful except in limited and clearly-defined circumstances, the reference in the Guidance to “termination of pregnancy services” was an inaccurate euphemism and that it was inconsistent with the law to describe induced abortion as a “service” provided by Health Trusts. Likewise, the Guidance did not misstate the position as to the survivability of the foetus, since whether or not termination was necessary in a particular case to save the woman’s life or to prevent permanent damage to her physical or mental health was a matter of clinical judgment. Nor was it inadequate in relation to the issue of obtaining informed consent from women considering abortion. He also rejected SPUC’s further contention that the Guidance failed anywhere to refer to the interests of the unborn child.
Where the Guidance did fall down, however, was on the issues of non-directive counselling and conscientious objection on the part of medical staff. Section 5.9 of the draft 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”.
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 J concluded at para 38 that the text did not provide the necessary clarity for professionals in carrying out their lawful duties and should be reconsidered. 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”. It was also ambiguous about the right to object on grounds of conscience “except in circumstances where the woman’s life is in immediate danger and emergency action needs to be taken”. It was not clear whether this related only to a situation in which the actual life of the mother was at stake or whether it extended to a situation where, in the absence of an abortion, there would be serious long-term effects on her physical or mental health. He concluded that, overall, there was no need for the Guidance to be quashed but 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 with the sections on conscientious objection and counselling omitted and marked in the text “Section temporarily withdrawn”. The issue does not seem to have been resolved: the current version of the Guidance, issued in April 2013, is still marked “DRAFT”.
The proposed consultation
On 8 December, David Ford MLA, Minister of Justice and Leader of the Alliance Party, announced that he was going to consult on changing the law to allow women carrying babies with fatal foetal abnormalities to have a termination. The BBC suggested that termination of pregnancy resulting from rape or incest would also be covered. Ford said that he hoped to issue a consultation document for the “potential for change” by Easter 2014 and that he anticipated that it would only apply to a narrow range of cases:
“Now this is not talking about a wholesale introduction of the 1967 Abortion Act as applies across the water, it is simply saying that in a very narrow range of cases … we do need to consider whether it should be lawful to have an abortion in those circumstances where there is no chance of the foetus being delivered and having a viable life”.
As a result of the tragic death of Savita Halappanavar at University Hospital Galway, on which we reported in our roundup on 18 November 2012, the Oireachtas passed the Protection of Life During Pregnancy Act 2013, which was signed into law by President Higgins on 30 July. It is a very limited measure indeed, providing for termination in cases where there is the risk of loss of life from physical illness, risk of loss of life from physical illness in an emergency or risk of suicide – but it does not provide directly for the termination of pregnancy as a result of rape or incest. Possibly the proposed consultation in Northern Ireland will range somewhat wider than the terms of the Irish Act; but Mr Ford must be conscious of the fact that, whatever the outcome of the consultation, it will not be at all easy to secure the passage of the necessary legislation through the Assembly.
The current law in Northern Ireland remains worryingly uncertain. It is no surprise that it has come in for withering criticism from a feminist socio-legal perspective: see, for example, Eileen V Fegan and Rachel Rebouche: “Northern Ireland’s Abortion Law: The Morality of Silence and the Censure of Agency” (2003) Feminist Legal Studies 11:221–254. Perhaps less predictably, however, mainstream medical practitioners seem equally unhappy at its lack of clarity.
In its draft response to the Executive’s initial draft Guidance that was challenged in SPUC, Re Judicial Review, the NI Council of the Royal College of General Practitioners argued that in order to exercise their clinical judgment in individual cases, doctors needed to be confident about the standards to which they were working. The College concluded that “the case law and the draft guidelines give no range of circumstances which might come within the definition of a lawful cause for abortion in Northern Ireland”. Whatever one’s personal views on the morality or otherwise of abortion, such a lack of clarity cannot be acceptable, whether to clinicians or to their patients.
There is also the broader question of compatibility with the ECHR: in short, exactly why should a resident of one part of the UK be denied an abortion, while a resident in another – in precisely similar circumstances – should have access to a termination? Moreover, the final guarantor of human rights within the Province is the UK Government, not the Northern Ireland Executive. And how might the ECtHR balance the opposition of the majority of local politicians and religious groups to liberalisation of the law against a demand from an atheist Northern Irishwoman (or, indeed, from an atheist Englishwoman resident in Belfast) that she be given the same rights of access to termination services at her local hospital as her fellow-citizens enjoy in Great Britain? “Due regard to local requirements” or “respect for private and family life”?