Eamonn McCann: A more liberal interpretation of the North’s abortion law

The Stormont Executive, last Friday evening, Good Friday, published its Guidance for Health and Social Care Professionals on Termination of Pregnancy in Northern Ireland. The timing made it inevitable that the document would attract little immediate attention. But it represented a shift away from the "pro-life" assumptions of previous guidelines and went some distance towards addressing the contradictions and cruelties of recent decisions to charge women with serious offences for alleged involvement in procuring abortions.

It also suggested change in the approach of professionals in the North to abortion cases generally.

The Good Friday document differs significantly from draft guidance published in 2013 by then DUP minister for health Edwin Poots: the difference is detectable in the 2013 document's title: The Limited Circumstances for a Lawful Termination of Pregnancy in Northern Ireland. "Limited" is syntactically redundant here. Its insertion was presumably intended to reassure "pro-life" opinion that little or nothing in the North's draconian abortion regime would change any time soon.

Poots was wrong about that. Change, albeit tentative, insufficient and circumscribed, is in the air.

The first paragraph of the Poots guidance declared that, “The aim of the health and social care system must be protection of both the life of the mother and her unborn child . . . Intervention cannot have as its direct purpose the ending of the life of the unborn child.”

Ideological formulations

The emotionally and ideologically loaded formulations – unborn child, direct (as opposed to indirect) abortion – have been replaced in the new guidance by accurate clinical terms such as “foetus”. The word “unborn” appears only once in the text, in a footnote referring to the Society for the Protection of the Unborn Child.

The concept of "direct" abortion – key to current Christian doctrine as interpreted by the Catholic Church and many evangelical Protestant groups – is dealt with in a single, cryptic sentence: "In clinical management, the terms direct and indirect abortion are not used."

It is in relation to the abortion pill that the most significant changes are urged.

The guidance notes that health and social care professionals are required under law to pass on to the police any evidence they may gather of an unlawful abortion having taken place.

However, it goes on to say: “The health and social care professional need not give that information if they have a reasonable excuse for not doing so; the discharge of their professional duties in relation to patient confidentiality may amount to such a reasonable excuse.”

It notes of abortions procured with the pill that, “In many situations, the symptoms will be indistinguishable from a natural miscarriage.” In other words, women who present at a hospital with complications arising from an abortion procured with the pill – a highly unusual circumstance – can be confident that no one will be able to tell that she’s had an abortion. “Don’t ask, don’t tell.”

Related offences

The new guidance throws harsh light on the charging of two women in the North with abortion-related offences carrying a life sentence.

One, a 21-year-old from Co Down, is alleged to have procured an abortion for herself; the other, the mother of an underage girl, to have assisted her daughter in bringing an abortion about. Both are on bail awaiting trial for using a “poison” or a “noxious substance” – the drugs Mifepristone and Misoprostol – to end the pregnancies.

The new guidance will not change the law but offers a significantly more liberal interpretation of the existing law.

It is unlikely that the two women would have been charged – other considerations apart, the authorities may well not have known of the alleged offences – if the Good Friday guidance had governed medical practice at the time.

The courts could reject the new guidance. The position of the judiciary, however, appears to have been set out in a ruling last November in the High Court in Belfast in a case brought by the Northern Ireland Human Rights Commission arguing that existing law was incompatible with the European Convention on Human Rights.

Mr Justice Horner ruled: "Given this issue is unlikely to be grasped by the legislature in the foreseeable future, and the entitlement of citizens of Northern Ireland to have their convention rights protected by the courts, I conclude that the article eight rights of women in Northern Ireland who are pregnant with fatal foetal abnormalities or who are pregnant as a result of sexual crime are breached by the impugned provisions."

In the aftermath of publication of more liberal guidance, and in light of Horner’s ruling, the battle to force the Assembly to grasp the issue can be expected to hot up.

In the last Assembly, a motion to legalise abortion solely and specifically in cases of fatal foetal abnormality was defeated by the DUP and SDLP acting in concert. The “pro-life” side still held a majority.

But the direction of travel is clear.