International Law and the Legalization of Abortion in Northern Ireland.

• Author: Uterhark, Emily

1. INTRODUCTION 158 II. BACKGROUND 160 A. The Original Abortion Ban 160 B. Partition of Ireland 161 C. Good Friday Agreement 162 D. Human Rights Treaties 163 E. Republic of Ireland Referendum 166 F. Collapse of N.I. Power-Sharing 166 G. Amendment in Parliament 167 H. Interim Guidelines 169 I. Governing Guidelines 170 III. ANALYSIS 173 A. Good Friday Agreement 173 B. European Convention on Human Rights 175 C. Convention on the Elimination of Discrimination Against 178 Women D. Interim Guidelines 182 E. Governing Guidelines 184 IV. CONCLUSION 188 I. INTRODUCTION

   Imagine being 19 weeks pregnant. Looking forward to your first baby. Only to find out that the fetus was not viable. Even if you gave birth, the baby wouldn't live. However, your only option was to live with that reality for the next four months. (1) This was the reality that Sarah Ewart faced in Northern Ireland. In an article for "The Irish Times" Sarah wrote:

   After a number of scans it was confirmed that the baby girl I was carrying had anencephaly--which means the skull and brain hadn't properly developed. We had never heard of anencephaly and so thought at that point we would be able to have operations and bring our daughter Ella home... As we listened to the consultant and the midwife it quickly became clear that this was not going to be an option for us and that the birth would be extremely difficult. I asked what my options were and was given only one - to continue with the pregnancy. I couldn't face continuing with a pregnancy I knew wouldn't survive so I enquired about a termination. Immediately we were told they couldn't discuss that or advise us on anything to do with an abortion. Legally, they were not allowed to offer that as an option, never mind talk about it. We left, numb and devastated. (2) While the rest of the United Kingdom has allowed abortion in certain circumstances since 1967, Northern Ireland does not. (3) Having an abortion or performing the procedure has been a criminal offense since 1861, except when the mother's life is in immediate danger or the pregnancy will cause permanent mental distress. (4) While that seems like it would allow abortion in some cases, the reality of the situation is very different. Abortion is illegal even in instances of rape, incest, and non-viable fetuses. (5) Northern Ireland is a part of the United Kingdom, however, when the Abortion Bill of 1967 was passed it was not applied to Northern Ireland. (6) This resulted in one the strictest abortion regulations in the world to continue into the twenty-first century.

   It left people like Sarah Ewart, pregnant, scared, and unable to make a complete medical decision on their own, feeling that their only option was to spend money out of pocket and fly to another country to have the abortion. Sarah flew to England and spent a total of [pounds sterling] 2,100 on flights, accommodation, and the procedure. (7) Sarah wrote:

   A change in the law here is needed to help women like me. The experience is distressing enough without having to go to England for treatment. Support is needed for women like me who have taken this heartbreaking decision. If a woman wants to go through a birth that's okay, but if a woman doesn't want to there has to be another option. Neither one is easy. We need compassion, respect and dignity. (8) The law needs to change, and in a sense it has. For now.

   On July 24, 2019, the Parliament of the United Kingdom passed an act that included an amendment requiring Northern Ireland to implement recommendations from the Committee on the Elimination on Discrimination Against Women. (9) The amendment required Northern Ireland to repeal the 1861 abortion act and requires the decriminalization of abortion. (10) The law went into effect on October 22, 2019, since the Northern Ireland power-sharing government (Stormont) did not reconvene before October 21, 2019. (11) Since the law did go into effect, it will give women the right to obtain abortions under the CEDAW recommendations; however, when the Northern Irish government (Stormont) reconvenes, it can recriminalize abortion. (12) They made this attempt when Stormont under DUP leadership reconvened briefly on January 11, 2020 before the official Brexit the next day. This Note argues that abortion should be legal in Northern Ireland regardless of whether the new legislation from British Parliament ever went into effect or gets overturned by the Stormont legislature, because of several treaties and domestic decisions from the Supreme Court in Belfast and that the new regulations made in accordance with the amendment need to meet the standards of the CEDAW recommendations.

   Part II will explain the development of abortion regulation in the United Kingdom and Ireland over the course of the past three centuries. In II.A-C, this Note will explore how the changing relationship between the United Kingdom and the Republic of Ireland has affected the abortion regulations in Northern Ireland and how treaty law has had a major impact on that relationship. Part II.D will discuss the various human rights treaties that the United Kingdom has signed, which also binds Northern Ireland. Part II.E-G will also discuss the recent developments on abortion law in the Republic of Ireland, the changing public perception, and the Parliamentary amendment that led to the legalization of abortion in Northern Ireland for now. Part II.H-I will discuss the interim guidelines and the new official legal framework for abortion services in Northern Ireland in detail.

   Part III will analyze the various treaties that the United Kingdom of Great Britain and Northern Ireland is bound to and how they apply to this issue. In III.A, this Note will analyze the Good Friday Agreement, in particular the human rights section of the treaty that includes a section on women's rights and how the classification of Northern Irish women as citizens of the United Kingdom affects their rights. Part III.B will examine European Convention on Human Rights, a treaty that the United Kingdom is a party of and is bound to the requirements. It will also explore Belfast's own High Supreme Courts recent decisions. Part III.C will examine the Convention on the Elimination of Discrimination Against Women, how it applies to abortion, what the recommendations are that Northern Ireland has to implement and what it means for a woman's right to an abortion, how the recommendations are binding even without the UK legislation, and therefore abortion should be legal in Northern Ireland even without the UK legislation. Part III. D examines the interim guidelines that came into effect on October 22, 2019, and if they meet CEDAW recommendations. Part III.E examines if the legal framework and regulations for abortion services that came into effect on March 31, 2020 meet CEDAW recommendations and whether they breach international treaty obligations. Part IV concludes that abortion should be legal in Northern Ireland, together they make the argument even more conclusive. Abortion should be legal in Northern Ireland even if the new legislation from British Parliament never goes into effect or gets over turned by the Stormont legislature.

2. BACKGROUND

   1. The Original Abortion Ban

      Abortion has been a controversial issue for the last 200 years. Moral argument entered into the political arena, and often religious views dictated policy and legislation on abortion. In the nineteenth century, the British Empire, as it existed at the time, banned abortion throughout its territory. (13) The original abortion bans of 1861 stated:

      Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life [...] (14) Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be kept in penal servitude [...] (15) A woman faced criminal charges if she tried to procure an abortion, including cases of rape, incest, and fetal abnormalities that made it non-viable. The same criminal charges applied to anyone who tried to aid the woman, which included doctors.

      Eventually, the United Kingdom reversed this ban in 1967 as part of the greater movement of second wave feminism that occurred in Europe and the United States in the 1960s and 1970s. (16) However, this reversal did not apply to Northern Ireland, since Northern Ireland had Home Rule powers for domestic decisions. (17) Abortion regulation became more complex in Northern Ireland because of the original colonial relationship between the island Ireland and Great Britain, and the present relationship between the Republic of Ireland and the United Kingdom of Great Britain and Northern Ireland.

   2. Partition of Ireland

      The island of Ireland had been under British colonial rule from around 1200 until the twentieth century. (18) Ireland was under complete governmental control of Westminster until 1922. The War of Independence began in 1919 on the streets of Dublin over the British promise of Home Rule after World War I. (19) However, many in the North of Ireland, particularly in Belfast, did not wish Ireland to have Home Rule. (20) Those that did not want Home Rule were mainly descendants of...