Grasping the Nettle: Human rights and access to abortion in Northern Ireland

RightsNI is delighted to welcome this guest post from Dr Catherine O’Rourke. Catherine lectures in Human Rights and International Law and is Gender Research Coordinator at the University of Ulster’s Transitional Justice Institute. She was one of authors of the submission to the UN Committee on the Elimination of All Forms of Discrimination Against Women to request an Inquiry under its Optional Protocol into access to abortion in Northern Ireland. 

Late July can be a sleepy period in Northern Ireland, but July 29, 2013 shouldn’t slip by as just another day, as it was a significant day for women’s rights in the jurisdiction: it was the day that the Committee on the Elimination of All Forms of Discrimination Against Women published its Concluding Observations to the UK’s recent periodic report, in which concerns and recommendations around access to abortion in Northern Ireland were raised; also, it was the day that the Department of Health, Social Services and Public Safety in Northern Ireland closed its consultation on the draft ‘Guidance on the Limited Circumstances of Termination of Pregnancy’.

Arguments that the right to access safe and legal abortion activates the prohibition on sex discrimination, or the guarantees of individual bodily integrity, have to date gained only limited traction in international human rights law. Where we have witnessed substantial development in terms of human rights and abortion, however, is in two discrete areas: firstly, the requirement for legal clarity concerning the scope of access to abortion and effective procedures to vindicate legal rights to abortion in jurisdictions where they do exist; and secondly, in the obligation on states to ensure that restrictive abortion regimes do not impinge upon the rights of women to life and to live free from torture, inhuman and degrading treatment.

In Northern Ireland, it is the first of these areas – the requirement for legal certainty and effective procedures to vindicate legal rights – that has been most pertinent. The opening of the Marie Stopes Clinic in Belfast last year was a highly visible reminder – to those who needed to be reminded – that abortion is lawful in Northern Ireland, albeit in limited circumstances.  What the opening of the clinic also emphasized was the extraordinary lack of precision of the law in this area. The human rights concerns raised by the absence of legal clarity on this issue have been identified in this jurisdiction for a full two decades. In 1993, in a report tellingly entitled ‘The Twilight Zone’, Professor Simon Lee warned the Northern Ireland Office that the absence of legal clarity in the prevailing law amounted to a violation of the requirements of legal clarity enshrined in article 10 of the European Convention on Human Rights. His position was endorsed at the time by the Standing Advisory Committee on Human Rights (the predecessor to the Northern Ireland Human Rights Commission).

These observations provide an essential backdrop to the ongoing process of developing Guidance for medical professionals on the lawful termination of pregnancy by the Department of Health, Social Services and Personal Safety, that was initiated by the judicial review successfully brought by the Family Planning Association (Northern Ireland) in 2004. The current draft of the Guidance raises manifold concerns, but this blog will highlight some of the most pressing human rights issues.

The draft Guidance will have a ‘chilling effect’ on the decision-making and practice of medical professionals in dealing with possible cases of the lawful termination of pregnancy.

While the Department is not entitled to amend the legal framework in formulating this Guidance, the Department must nevertheless be keenly aware and fully respectful of its legal obligations under the European Convention of Human Rights and the Human Rights Act. In this respect, the European Court has been absolutely clear that, where access to abortion is lawful in certain circumstances, state parties must ensure a legislative and administrative framework that gives meaningful and real effect to that legal right. In particular, the Court has noted that:

the legal prohibition on abortion, taken together with the risk of their incurring criminal responsibility …, can well have a chilling effect on doctors when deciding whether the requirements of legal abortion are met in an individual case. The provisions regulating the availability of lawful abortion should be formulated in such a way as to alleviate this effect. Once the legislature decides to allow abortion, it must not structure its legal framework in a way which would limit real possibilities to obtain it (Tysiac v Poland, ECHR, Application No. 5410/03 (2007), para 116).

The threat of prosecution is reiterated throughout the draft Guidance, firstly in relation to the legal duty on health and social care professionals to report any procedure that is unlawful in Northern Ireland. Failure to do so, as the Guidelines pointedly reminds the medical professional, risks a maximum of ten years in prison (Guidance, paragraph 2.13). In addition, anyone convicted of performing an abortion is liable to criminal prosecution with a maximum penalty of life imprisonment. Anyone convicted of a secondary role is liable to the same penalty. This is a profoundly threatening legal climate in which to operate and to seek to vindicate access to lawful abortion. By stating and repeating these risks of prosecution repeatedly throughout the document, the Department is doing much to exacerbate, rather than alleviate, the ‘chilling effect’ of the existing criminal sanctions for unlawful abortion. The Guidance fails to mention that the burden of proving that the termination was not carried out in ‘good faith for preserving the life of the mother’ is on the prosecution.  

The likelihood that this draft of the Guidance will act as a ‘chilling effect’ on the lawful provision of abortion in the jurisdiction is profoundly exacerbated by the repeated requirements of documentation and recording of the detail of termination procedures. Northern Ireland is a small jurisdiction. The most recent available figures indicate that the number of terminations of pregnancy performed in one year was no more than 35. In light of these numbers, there can be no effective guarantee of confidentiality or anonymity for either the women undergoing the procedure, nor the medical professionals performing them. These new and additional requirements around recording and documentation of clinical decisions – which have not been articulated anywhere in the relevant case law or legislation, but have instead been created by the Department – will likely operate as a profound ‘chilling effect’ on the decision-making of relevant medical professionals and the availability of lawful abortion in the jurisdiction. In terms of the Department’s human rights obligations, such requirements around recording and reporting could only possibly be justified by evidence of a distinct and substantial medical benefit to the women affected. The Northern Ireland Branch of the Royal Society of Midwives, amongst others, has stated that there is no medical basis for these reporting obligations on doctors.

The draft Guidance fails to establish procedures and mechanisms for the vindication of the right to access lawful abortion

Moreover, the draft Guidance does not establish a procedure and mechanism whereby a pregnant woman can make a prompt appeal to the decision to not grant a request for termination where she believes she meets the criteria for a lawful abortion. The requirements on the Department in this regard are also clearly articulated in the Tysiac v Poland decision (Paragraph 117). The government must establish procedures enabling women to exercise that right. The European Court noted some of the key components of such a procedure, which include:

(i) a guarantee that a pregnant woman has the right to be heard in person and have her views considered;

(ii) a body to hear the woman’s appeal;

(iii) that the body reviewing her appeal should issue written grounds for its decision; and

(iv) finally, that the government recognise that ‘the time factor is of critical importance’ in decision involving abortion and therefore the hearing and appeals process should ensure that such decision are timely (Paragraph 118.).

While the Guidance repeatedly mentions the threat of criminal prosecution to medical practitioners, it does little to ensure clarity of the pregnant woman’s legal position, and nothing to safeguard the position of the pregnant woman seeking an abortion in the event that her doctors are in disagreement either with her or with each other. Should a legal challenge occur, the Guidance in its current draft is very likely to be found in breach of the state’s obligations under article 8 of the European Convention.

The draft Guidance provides inadequate protection of the right to freedom of information

Finally, the sections of the draft Guidance dealing with access to information are unfortunately guided by Justice Girvan’s regrettable misstatement of the law in the 2009 judicial review, in which the Northern Ireland High Court took the mistaken view that providing non-directive counseling to women seeking information about the availability of abortion in another jurisdiction was ‘arguably unlawful’ (Society for the Protection of Unborn Children, Re Judicial Review [2009] NIQB 92 (30 November 2009), para 37).  In the judgment, the Court disregarded the 1992 case of Open Door and Dublin Well Woman v Ireland, (Open Door and Dublin Well Woman v Ireland , ECHR, Application No. 64/1991/316/387-388 (1992)) in which the European Court affirmed that providing such information is lawful and is protected under Article 10 of the European Convention on Human Rights. The current draft of the Guidance may be correct in stating that activities by medical professionals and counselors to ‘advocate or promote‘ (paragraph 5.12) abortion in another jurisdiction are not necessarily protected by the right to access information under article 10. Nevertheless, if challenged, the Department would be under a heavy burden to demonstrate that sufficient safeguards were in place to ensure that the right to information under article 10 was not, in practice, being curtailed by the relevant provisions around activities to ‘advocate or promote’ abortion in another jurisdiction. This burden on the Department is all the more exacting, given the risk of prosecution explicitly noted in this section, and the existing European Court jurisprudence in this area. The distinction between activities to ‘advocate and promote’ and the provision of information is far from clear and may well give rise to further to litigation in order to test the distinction.

The Bigger Picture:  evidence of the ‘systematic violation’ of the Convention on the Elimination of All Forms of Discrimination

The UN Committee on the Elimination of All Forms of Discrimination Against Women is currently considering a request to conduct an inquiry into access to abortion in Northern Ireland and its CEDAW compliance under the Optional Protocol to the Convention. The submission making the request was developed jointly by Alliance for Choice, the Northern Ireland Women’s European Platform and the Family Planning Association Northern Ireland. The submission includes and goes well beyond the concerns raised by the draft Guidance. It documents the systematic violation of articles 2 (legal equality), 5 (social and cultural discrimination), 11 (education), 12 (health) and 15 (family life) of the Convention that prevail more broadly in the jurisdiction due to the restrictive social, cultural and legal context in which women attempt to exercise reproductive freedoms in Northern Ireland. The inquiry procedure can only be activated where there is evidence of ‘grave or systematic violations’ of the Convention. The Committee has generally been reluctant to use the Inquiry procedure and has established a very high threshold of suspected non-compliance, and state inactivity to remedy the alleged non-compliance, before proceeding with an inquiry. (To our knowledge, the Committee has, to date, used the full procedure only once, in order to investigate the poor investigation and impunity around the deaths and disappearances of women on the US-Mexican border near Ciudad Juarez). Against this backdrop, the fact that we know that the Committee is actively considering the request for an Inquiry (a request for an update on developments here was recently issued by the Committee to the authors of the submission), the UK government and the local DHSSPS can expect substantial additional international scrutiny of the human rights compliance of the draft and final Guidance.

The need for local human rights organisations to step-up

This CEDAW initiative by local women’s organisations has taken place, notably, with little input or support from the human rights community in Northern Ireland. Indeed, it was in the absence of mainstream human rights advocacy on these issues that local women’s organisations were forced to move into the realm of international human rights law to advance their agenda. The European Court in particular, but also the Human Rights Committee of the ICCPR, have identified the potential for restrictive abortion regimes to violate civil and political rights concerning access to information, obligation for legal certainty, and the prohibition on torture, cruel, inhuman and degrading treatment. Human rights organisations that are reluctant to advance a substantive right to abortion under international human rights law are obviously free to pursue that position. Where silence or inactivity is not an option, however, is in the face of these clear attempts by the DHSSPS to violate the rule of law, to limit the rights of women to access information, and to breach the right to private and family life of women in Northern Ireland.