On 31 March 2020, The Abortion (Northern Ireland) Regulations 2020 came into force. This is a landmark for the protection of reproductive rights in Northern Ireland. This blog provides a brief overview of the regulations and highlights some areas of on-going concern.
On 22 October 2019, Westminster voted through, by a majority of 327 to 64 votes the Northern Ireland (Executive Formation etc) Act 2019 (NIEFA). Section 9 repealed sections 58 and 59 of the Offences Against the Person Act 1861 (the OAPA) effectively decriminalising abortion before viability in Northern Ireland. The NIEFA also required ‘the recommendations in paragraphs 85 and 86 of the (Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)) report’ which arose following an inquiry into abortion in Northern Ireland, be implemented.
Under the new regulations, in no circumstances can the pregnant woman be held criminally liable for having an abortion (regulation 11(2)(a)). Regulations 9(6) and 10(4) provide for an offence where someone “intentionally contravenes” the rules on certification and notification. Part 6 details an offence of ‘unlawful termination’ which may apply to medical professionals (subject to the defence they acted in ‘good faith’) and 3rd parties.
Regulation 3 allows for abortion without conditionality provided the pregnancy has not exceeded 12 weeks gestation. Abortion is permitted where a pregnancy has not exceeded 24-weeks gestation when two registered medical professionals are of the opinion that continuance of pregnancy involves a risk greater to the physical or mental health of the pregnant woman greater if the pregnancy were terminated (regulation 4). Regulation 5 allows for terminations with no gestational limits in cases of necessity, i.e. where it is “immediately necessary to save the life, or to prevent grave permanent injury to the physical or mental health, of the pregnant woman”. Regulation 6 allows for abortion with no gestational limit where:
(a) the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman; or
(b) the continuance of the pregnancy would involve risk to the life of the pregnant woman which is greater than if the pregnancy were terminated.
Regulation 7 permits abortion in case of “severe fetal impairment or fatal foetal abnormality”. Regulation 12 stipulates that a medical professional is not under a duty to participate in treatment when they conscientiously object. However, conscientious objection is not permitted when the treatment is necessary to save the life, or to prevent grave permanent injury to the physical or mental health of a pregnant woman (regulation 12(3)).
Abortion provision in cases of threat to physycial or mental health of pregnant women: Para 85 (b)(i) of the CEDAW report on abortion in Northern Ireland requires that the UK ensure legislation is put in place for provision of abortion where there is a “[t]hreat to the pregnant woman’s physical or mental health, without conditionality of ‘long-term or permanent’ effects”. Arguably the condition of ‘grave permanent injury’ on abortions after 24-weeks goes against this stipulation in the CEDAW report/NIEFA. However, the Explanatory Memorandum suggests that regulations 3-5 are sufficient to discharge CEDAW’s requirement.
Conscientious objection: it is unfortunate that the regulations do not enshrine an obligation on objecting professionals to refer which the CEDAW Committee has held forms part of the UK’s obligations.
Limitation of telemedicine: the regulations are to be commended for the clear statement that women must be allowed to take misoprostol, the second medication used in early medical abortion (EMA), at home (regulation 8(1)(d)). However, places where women may take mifepristone, the first medication used in EMA, is limited (regulation 8(2)(b)). This limitation effectively rules out ‘telemedicine’, online or phone consultation, followed by both sets of pills being posted to the woman. This restriction is particularly controversial given that the regulations will be implemented amidst the global COVID-19 pandemic.
The regulations represent the culmination of decades of activism across grassroots organisations, medical organisations, legal representatives, and political actors. It is an historical moment for reproductive rights in Northern Ireland and the UK.
A longer blog on these issues can be found at Dr Sheelagh McGuinness and Dr Jane M Rooney, ‘A Legal Landmark in Reproductive Rights: Abortion (Northern Ireland) Regulations: Provision of Abortion Services’, Bristol Law School Blog, 1 April 2020.