The Minister of Justice in the NI Assembly, David Ford, recently presented a discussion paper on abortion; specifically on whether abortion should be legal in cases of lethal foetal abnormality, and following criminal sexual activity such as rape or incest. (Paper here.) The Minister will not consider any responses which try to widen the scope of abortion otherwise. If you want to respond, you’ll need to be quick, for the discussion closes on 17 January.
The paper includes a summary of the law as it refers to N Ireland, and also notes the legal position in the Republic. In NI, the original law was the Offences Against the Person Act 1861, the relevant sections of which are:
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.
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 [sic], and being convicted thereof shall be liable to be kept in penal servitude.
The Case Law relevant in NI is the pre-war Bourne judgement. In this case, an English doctor aborted a 14 year old who had been raped; he announced his intention to do this, and was prosecuted and acquitted. The judgement informs the DoJ paper, for it extended the circumstances in which an abortion could be legal. And, although it isn’t mentioned in the paper, I understand that as the law said, to paraphrase, “it shall be illegal to perform an illegal abortion”, the defence argued that there therefore must be occasions when it could be “legal to perform a legal abortion”. Aleck Bourne later became a staunch ‘pro-lifer’.
Discussions around David Steele’s 1967 Abortion Act were passionate, and have continued; this Act wasn’t taken up by the then Stormont administration. Unhappily, much of the discussion and information seems more like propaganda, with little basis in fact. For example it was claimed that doctors who performed abortions would be in breech of the Hippocratic Oath. The relevant part of the original is:
I will get no sort of medicine to any pregnant woman, with a view to destroy the child
This was taken to be an absolute prohibition. However, the Oath also includes:
I will not cut for the stone, but will commit that affair entirely to the surgeons.
The “cutting for stone” means a stone in the urinary bladder. The physician was a gentleman, the surgeon was a tradesman who was called in by the physician as necessary. Likewise, the physician didn’t do the abortions himself, he left that up to the midwife or surgeon. Abortion was certainly practiced in Hippocrates’s time, and has been recorded for nearly 4,000 years. The distinction between physicians and surgeons continued well into the later 19th century in the UK.
More recently, the ‘morning after pill’ has been described an an abortifacient, which it isn’t. For an abortion to happen, the pregnancy must be ‘established’, that is normally implanted in the uterus. But the morning after pill doesn’t do this; it delays or prevents ovulation, and is correctly described as ‘emergency contraception’.
The majority of abortions are performed early; very few are performed late, when the foetus might be recognisable for what it is.
So, I’d urge you to respond to the DoJ document. Here are some general points I’d make:
• Men cannot have an abortion; there is no equivalent male procedure.
• Is it appropriate to criminalise for reasons which are essentially a question of morals?
• And, if so, is it appropriate for one group to expect that their view shall prevail above others?
• If, say, abortion was to be decriminalised, surely there is no obligation on any individual to have one; it becomes a matter of choice.
One further point; there are often unintended and unwanted effects of criminalising something which many people would prefer to have. Criminalising of abortion drove it underground; it was certainly possible to get one in N Ireland, if you had the money and the contacts. Otherwise, it was the backstreets and knitting needles, and you might be lucky to survive. The criminalisation of homosexuality opened the way for a blackmailer’s charter. Criminalisation of alcohol, as Prohibition in the US, simply didn’t work. Criminalising drugs and the “war on drugs” hasn’t worked.
Criminalising activities which are popular inevitably leads to criminality; surely, not an outcome that we want?