This happened in late November: I was in Northern Ireland and on my way to meet a pro-choice activist in Derry. I had a little time to kill, so I dropped into the public library in hopes of finding free wi-fi. While I was there, I found packaging from a home pregnancy test strewn on the floor of a toilet stall.
Inevitably, I started imagining possible scenarios. Perhaps the test-taker was a student who didn’t want her parents to know she might be pregnant? Maybe she was a woman who feared her partner’s reaction to the test result? Whatever the story, if I were a betting woman, I wouldn’t put money on a hoped-for pregnancy.
Assuming I guessed right, what are her options?
The 1967 Abortion Act put Britain at the forefront of abortion access in western democracies, giving women ready access to abortions in a local hospital or clinic, paid for by the National Health Service.
As Christiane McGuffin of Alliance for Choice in Derry told me over a late afternoon coffee in Sandino’s Café-Bar,on Nov. 24, many people assume that since Northern Ireland is part of the United Kingdom the same conditions apply there. Even people living in Britain or the Republic of Ireland are likely to think so, she said. Indeed, before she moved to Derry from Germany, it had not occurred to her that abortion might be proscribed in 21st century Western Europe.
But abortion in Northern Ireland is still governed by the Offenses Against the Person Act (1861). The upshot is in an abortion regime that Amnesty International calls “draconian” and “the harshest in Europe”.
Abortion is legal in Northern Ireland only when pregnancy poses a direct risk to a woman’s life or will cause serious and long-term harm to her health. In all other circumstances, the penalty for having an abortion in Northern Ireland or helping a woman to procure one there extends to life imprisonment.
The sound of ice breaking?
A few days after I met McGuffin, the Belfast High Court declared that, as it stands, this law contravenes the European Convention on Human Rights (ECHR). Judging by the early reports of a “historic” and “landmark” case, you might think that Justice Mark Horner’s decision meant the mystery test taker would suddenly have significant new options.
But the Nov. 30 ruling addresses only two very specific circumstances: pregnancies that result from sex crimes (rape and incest) and fatal foetal abnormalities (FFAs).
Judge Horner remarked that such cases were likely to produce considerable “mental anguish” for the women involved. For example, he noted the “pain and upset” described in evidence presented on behalf of “AT”. Visibly pregnant, she endured the distress of carrying “a foetus which was doomed to die and of having to mix with other happy pregnant mothers.”
The court also heard testimony about a woman who was raped by an abusive partner and feared he would react violently if he learned she wanted to terminate the resulting pregnancy. A 13-year-old, pregnant as a result of familial sexual abuse, “had to travel outside Northern Ireland [to obtain an abortion] in a frightened and distressed condition,” despite police involvement in her case.
Many people who oppose “abortion on request” would allow it in circumstances like these. However, feminist legal scholars warn against making proof of rape or participation in a police investigation the condition for accessing abortion – a condition that could also have consequences for men who might be accused of rape, according to Eileen Calder of Belfast’s Rape Crisis and Sexual Abuse Centre.
Status quo ante
Long-time activist and scholar of abortion politics Goretti Horgan observed that the high court judgment “should not be seen as a step forward.” Justice Horner himself was explicit: “There is no right to abortion in Northern Ireland except in certain carefully-defined and limited circumstances.”
As Horgan noted, the ruling would restore abortion services to what they were before the Belfast Agreement empowered Bible-believing politicians to harass medical practitioners with threats of life in prison should they overstep Northern Ireland’s Victorian-era abortion law.
That’s if the ruling even gets enacted.
The Northern Ireland Human Rights Commission applied for judicial review because government politicians have failed to provide for abortion even where the situation is as extreme as that of Sara Ewart or AT. Northern Ireland’s Attorney General, who is known for his strong opposition to abortion, is currently looking for grounds to appeal the ruling.
Despite all this, Judge Horner has affirmed that it is for elected representatives, not the courts, to change the law. The outgoing First Minister stated in May that his Democratic Unionist Party (DUP), which is closely aligned with evangelical Protestantism, would block attempts to legalize abortion in cases of FFA.
Of the other parties in Northern Ireland’s power-sharing government, Sinn Féin supports limited legal reforms. The Ulster Unionist and Alliance Parties treat abortion as a matter of individual conscience and give their MLAs a free vote. The Justice Minister, an Alliance Party member, has proposed making abortion legal in the case of FFAs. We might expect his party colleagues to support the changes recommended by Horner but there’s no guarantee they all will. The Social Democratic and Labour Party (SDLP) adamantly opposes any liberalization of abortion law, a reflection of the party’s historic links to the Catholic Church.
Moreover, even if a majority of MLAs voted to reform the law, the Agreement contains “cross-community consent safeguards” that enable the DUP to veto any legislation they dislike. (For details, click here.) While they were intended to protect ethnonational minorities from majoritarian domination, the party recently used the “safeguards” to sabotage an Assembly vote in favour of same-sex marriage.
Asking politicians to #trustwomen
Against this backdrop, as Emma Campbell and Fionnghula Nic Roibeaird of the Belfast section of Alliance for Choice outlined, pro-choice activists are trying to make abortion rights an issue in the Northern Ireland Assembly elections set for next May. The organization has recently launched a postcard campaign urging politicians to “Trust Women … to know what is best for themselves and their families,” and asking people to displace sectarian politics by telling election candidates that they will only vote for those who support women’s right to choose.
In the meantime, a new report in The Detail reveals that nearly 5,000 women gave Northern Ireland addresses at British clinics in the last five years. Another 20,000 travelled from the Irish Republic, where “the right to life of the unborn” is constitutionally enshrined.
In short, criminalization hasn’t stopped unhappily pregnant women from seeking abortions. It never does.
But if travel provides a safety valve that lets politicians maintain the hypocrisy that “no one” wants abortion in Ireland, as Horner noted, it “does not protect morals to export the problem to another jurisdiction and then turn a blind eye.”
Women with limited means are particularly affected, he said. “The protection of morals should not contemplate a restriction that bites on the impoverished but not the wealthy. That smacks of one law for the rich and one law for the poor.”
And yet, his ruling perpetuates precisely that inequity. Women with money will continue to travel and pay medical professionals for safe abortions. Those without will beg or borrow the needed funds, continue with unhappy pregnancies, or seek an illicit solution.
For increasing numbers of women, the last option means buying abortion drugs online. Taken according to protocol, the gold standard misoprostol-mifepristone combination safely ends 95-98 percent of pregnancies up to 10 weeks by causing a miscarriage. (Astonishingly, this option has only recently been approved in Canada, despite being accessible in much of Europe for a quarter century. It will become available here sometime in 2016.)
Of course, as with any drug, women are vulnerable to the integrity of suppliers and need accurate information about proper use and side effects. When BBC Northern Ireland ordered abortion pills online one supplier asked only for a credit card. Medical information was neither sought nor offered, and the pills it sent were made mainly of a common painkiller.
Criminalization hasn’t stopped unhappily pregnant women from seeking abortions. It never does.
In response, in a combination of direct action and campaigning, Alliance for Choice collaborates with the feminist non-profit Women Help Women to be sure that women who need reputable abortion pills can get them. Womenhelp.org, like the older organization Women on Web, provides telemedicine consultations to women in countries where safe abortions are not legally available.
If, after evaluation, a woman is medically eligible for an abortion with pills, Womenhelp.org ensures that the medicines are safely delivered as quickly as possible. The organization also provides follow-up medical and counseling support.
Consequential in the most immediate way for the women who need it, this approach to abortion activism is also revolutionary in a broader sense: it transcends national borders and enables women to bypass medical and political gatekeepers to take control of their own reproductive lives. Still, wherever abortion is illegal it cannot protect women against the law.
Earlier this year, a Belfast woman was charged with procuring a “poison or other noxious substance,” knowing it would be used to cause a miscarriage. That “poison” was mifepristone and misoprostol and she “procured” it for her teenaged daughter.
In solidarity, more than 200 activists from Alliance for Choice signed an open letter declaring that they too had used abortion drugs or helped others to obtain them. This is the second time they have done so, in hopes that arrests would force the reality of abortion onto the public agenda and test the law.
So far, none of them has been prosecuted.
Disclosure: Robin Whitaker is a board member of Women Help Women.