Good Friday this year was on March 25. March 25 is also Lady Day, the Feast of the Assumption, when Gabriel appeared to the Virgin Mary to tell her that she was with child. So you might well think it a strange, tactless, day for the Department of Health to announce new guidelines on abortion in N Ireland.
Perhaps they thought it was a a good day to slip out news, perhaps the commemorations of the Rising would overshadow the guidelines; if so, the announcement didn’t escape the BBC who reported it on their website the following day (here), and included initial comments from Dr Fiona Bloomer and Ms Bernie Smyth.
The guidelines come with an introduction from the Minister. Mr Simon Hamilton, the Health Minister, noted that the document had been agreed with the Executive, and that the document would be circulated to staff. He noted that there has been no change in the law, and:
This Guidance takes account of the issues raised in my Department’s public consultation in 2013 on this subject and also reflects the considered opinions of health professionals working in this area. The new Guidance is very much the product of the views of those working in this difficult area.
I know that this is an area of public policy where people hold differing views. My focus is on ensuring that health professionals who have to deal with extremely difficult cases have the clarity around the law that they have been asking me for.
Being from the Health Department rather than the Justice Department, the document is written in language accessible to medical professionals.
There is an introduction to the law in N Ireland, and the meaning of the ‘life’ of the mother which is based on the Bourne case and others. ‘Life’ in this context does not mean simply being ‘alive’, rather it extends to include her physical and mental health. The guidance notes that it is unlawful here to abort a foetus with a fatal abnormality when that is the only ground for abortion, but the impact of this abnormality on the mother may be a factor to be taken into account.
The guidance recommends that two medical practitioners should assess the mother, though in an emergency this may not be possible. While there is no statutory provision for conscious objection, the guidance makes it clear that employers should aim to accommodate such staff, but that this must not endanger the mother. This reflects guidance from the General Medical Council and the Nursing and Midwifery Code of Professional Practice.
It is lawful to inform a woman about the provision of abortion services outside N Ireland; whether it is lawful to ‘advocate or promote’ such services is uncertain, for this has never been tested in the Courts here. When does ‘advice’ become ‘advocation or promotion’? This is an area which it might take legislation to further clarify.
Rather clearer is when a woman presents in N Ireland after an abortion, either from self-administered pills bought off the internet, or after an abortion in a ‘legal’ jurisdiction; heath professionals should offer the appropriate aftercare.
There can be a conflict between confidentiality and the legal requirement of disclosure. Guidance notes that the first duty of care is to the woman. There may be a public health interest, to protect others from the harms of an illegal procedure, which would support disclosure.
I have not seen to date any comments from professionals whose practice could encompass abortion. To me, as an outside observer, the clarity of information is commendable. Still, the legal constraints on abortion in N Ireland remain; the law is unchanged, and this guidance cannot change it. And if there is conflict between the guidance and the law, the law will prevail. And the Courts do not offer justice but law.
Addendum: Radio 4 carried a programme about abortion on Wednesday morning; it very briefly discusses the guidelines. It’s available here.