Dr Catherine O’Rourke is Senior Lecturer in Human Rights and International Law at Ulster University Transitional Justice Institute and School of Law. She co-authored the submission requesting the CEDAW Committee to conduct an inquiry into access to abortion in Northern Ireland with Jude Cross (Alliance for Choice), Ann Marie Gray (NIWEP) and the Audrey Simpson (FPANI). A full account of the decision and process in requesting the inquiry is available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3132360.
On February 23, 2018 – more than seven years after the initial request to conduct an inquiry was made – the CEDAW Committee made public its inquiry report into access to abortion in Northern Ireland. The Committee concluded definitively that the current de facto and de jure limitations on access to abortion in Northern Ireland constitute both ‘grave and systematic’ violations of the rights guaranteed under the CEDAW Convention. The global significance of this determination should not be understated. This is only the 4th time that the Committee has found a state party to be in ‘grave or systematic’ violation of the Convention under the inquiry procedure, despite having the capacity to do since 2000. Moreover, it is the first time the Committee has made such a determination with respect to abortion. This blog post will provide a summary of the Committee’s findings and recommendations and will conclude with some reflections on their local significance and implications.
The Committee found the UK to be in violation of CEDAW article 1 (discrimination against women), article 2 (prohibition on discriminatory laws, policies and practices), article 5 (discriminatory social and cultural patterns), article 10 (discrimination in education), article 12 (discrimination in healthcare), article 14 (discrimination against rural women) and article 16 (discrimination in marriage and family relations). The Committee determined that the ‘deliberate maintenance of criminal laws disproportionately affecting women and girls, subject[ed] them to severe physical and mental anguish’ constitutes ‘gender-based violence’ and ‘may amount to cruel, inhuman and degrading treatment’, in violation of articles 1 and 2, read together with articles 5, 12 and 16 (para 72(a)). Further, the Committee found that the laws criminalising abortion render abortions inaccessible in Northern Ireland, irrespective of their legality, due to clinicians’ fear of prosecution (para 73), constituting a violation of article 12. In addition, school discretion over the substance of relationship and sexual education in Northern Ireland, which permits ‘poor quality sexuality education for youth and anti-abortion and abstinence ethos indoctrination’ constitutes a violation of articles 2, 12 and 16 (para 75). Moreover, the iniquitous impact of the law on ‘rural, migrant, asylum-seeking, refugee women and women in situations of poverty’ violates CEDAW articles 2, 12, 14 and 16, in ‘dereliction of [the UK’s] public health duties’. Also, the Committee found violations of article 10 and 12 due to the State party’s failure ‘to protect women from harassment by anti-abortion protestors when seeking the sexual and reproductive health services and information’ (para 72(e)). Finally, the Committee determined that the UK’s ‘failure to combat stereotypes depicting women primarily as mothers exacerbates discrimination against women’ and violates article 5, read with articles 1 and 2.
Importantly, the CEDAW Committee will only make public the findings from its inquiry procedure in situations in which it determines ‘grave or systematic violations’ of the Convention. Thus, one-off or less serious violations of the Convention will not give rise to the publication of an inquiry report. It is clear from the Committee’s practice to date – in making public only four reports in the 18 years since the Committee has been empowered to conduct inquiries – that a high threshold underpins the Committee’s interpretation of the ‘grave or systematic violations’ criterion. Indeed, in the case of the inquiry into violence against indigenous women in Canada, the Committee determined the violations to be ‘grave’ but not ‘systematic’.
In the Northern Ireland case, the violations were held to ‘grave’ due to the particular situation faced by women in cases of severe or fatal foetal impairment, and victims of rape or incest, who are compelled by the criminal law to carry pregnancies to full-term. The resulting ‘severe physical and mental anguish, constituting gender-based violence against women’ therefore met the Committee’s threshold of gravity (para 73(a)). Further, the violations were held to be systematic because the criminal law and public policy compels women with unviable or unwanted pregnancies either to carry those pregnancies to full term, to travel outside Northern Ireland to undergo an abortion, or to self-administer abortifacients (para 73(b)).
In terms of its local significance, the inquiry report by the CEDAW Committee is the clearest possible statement that restrictive access to abortion in Northern Ireland, and the underpinning criminal law and public policy, is a manifest and ongoing human rights violation. The strength of this determination means that the issue can no longer legitimately be denied or marginalised by those (state actors, civil society organisations and political parties) who formally avow a commitment to human rights and gender equality. It is no longer tenable for such actors to obfuscate and dissemble on the issue of abortion. Moreover, the inquiry report is impressively detailed and sensitive to the local context in which restrictive access to abortion prevails. The Committee correctly and robustly identifies the negative gender stereotypes that inform – and are reinforced by – restrictive laws and policies on abortion in Northern Ireland. In particular, they name and evidence the full range of state and public actors who perpetuate such stereotypes. The report thereby constitutes an important call to action to advance gender equality in Northern Ireland. Finally, the report is clear – in the strongest possible terms – that devolution is no justification for the UK’s failure to comply with its obligations under CEDAW to women in Northern Ireland. In its response to the inquiry report, the UK worryingly relied heavily on devolution to justify its continuing inaction. In light of the ongoing suspension of devolved institutions, and the growing prospect of direct rule, such defences by the Westminster government are sounding increasingly hollow. The time to remedy the manifold violations identified in the inquiry report is now.