Abortion Consultation in N Ireland

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?

  • Clanky

    Abortions are like gay marriages, if your religious views on life means that you object to them then don’t have one, but you don’t have the right to decide for everyone else.

  • Korhomme

    You’ll notice that, in the original Offences against the Person Act, it doesn’t matter whether the woman is pregnant or not. Quite how you might abort someone who’s not pregnant isn’t at all clear. You might think that a prosecution for attempting to produce an abortion in a non-pregnant would be impossible. Yet, there was at least one such prosecution against a medic—and it was successful.

  • Zig70

    Abortion is correlated to murder for those who oppose it. You wouldn’t agree with your statement if you substituted murder for gay marriage?

  • Clanky

    Murder is illegal because everyone agrees it should be, not because some people have very strong views about it. For those who correlate it with murder then they simply shouldn’t have one.

  • Korhomme

    Murder, in common law, means the killing of a natural person with malice aforethought (and against the Queen’s Peace). A natural person is one who is alive. An person is alive only after delivery, has taken a breath, and (possibly) after the umbilical cord has been divided. A foetus, in common law, therefore is not such a natural person, and cannot be murdered.

  • babyface finlayson

    Surely the point is that those who consider it murder cannot simply say;
    “Not for me thanks, but you go ahead there”
    I don’t understand why some who are in favour of abortion being available (as I am) do not get this.
    It is pointless telling people it is none of their business when they believe it is the killing of an innocent. From their point of view it is of course their business.

  • Catcher in the Rye

    I don’t understand why some who are in favour of abortion being available (as I am) do not get this.

    Because your opinions are irrelevant.

    Criminal offences are, in broad terms, things which are deemed harmful to society in general if they are allowed to go unchecked. The critical aspect is that what is deemed harmful changes over time.

    Murder is clearly harmful to society at large.

    You may consider that stopping a pregnancy when the fetus is already clinically dead is harmful to society at large. But you won’t get far persuading many people of this.

    Equally you may consider that it is harmful to society to permit abortion here even though women can quite freely take a one hour plane journey to have it done in a nearby jurisdiction. Increasingly, you’ll have trouble persuading many people of that too.

  • babyface finlayson

    Firstly I’m trying to point out how the anti abortion lobby (or some of them at least ) view this,so when you refer to ‘you’ in your reply I hope you understand these are not my own views.
    My point was that to a Christian anti abortion individual they could no more consider it none of their business than you would if you saw someone being beaten to death on the other side of the road. Hence there is little point in arguing that they should simply ignore the issue.
    Also I don’t see why anyone’s opinions are irrelevant in a debate?

  • Catcher in the Rye

    I think Des O’Connor records should be illegal and I find it difficult to stand idly by while they are being distributed. Unfortunately, though, nobody really cares about my opinion, and I’ve been unsuccessful in persuading people that they should.

  • babyface finlayson

    On the other hand clearly lots of people care about abortion and they are voters and our main political parties are quite sympathetic to their viewpoint, so I’m guessing they will be taken rather more seriously than you.

  • William Cable

    ‘I think Des O’Connor records should be illegal and I find it difficult to stand idly by while they are being distributed. Unfortunately, though, nobody really cares about my opinion, and I’ve been unsuccessful in persuading people that they should.’

    That’s just a contemptibly stupid answer. It is generally agreed that murder is immoral so if you believe a particualr activity is murder you are justified in speaking out against it even if no one else thinks it is murder. Lots of people care about pro life opinions and even if they didn’t there’s no statute of limitations on how long an idea can be advocated.

  • William Cable

    ‘An person is alive only after delivery, has taken a breath, and (possibly) after the umbilical cord has been divided.’

    What a convenient (and completely unscientific) definition of alive.

  • carl marks

    excellent article,
    In the final paragraph is in my opinion the most compelling argument for pro choice legislation possible;
    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.

    only to often lately have we see and hear how those who opposed abortion and called it murder treated unmarried mother’s and their children and even today those who shout loudest against choice are in many case’s the same right wing who would happily see unmarried mothers stew in poverty.

  • Clanky

    Yes, you are justified in speaking out against it, you are justified in trying to persuade people of your opinion until such time as your opinion becomes the majority opinion and therefore carries enough political clout to become law. That is how democracy works.

    What those who feel that abortion is murder are not entitled to do is demand that their opinion is so important that even if it is a minority opinion then everyone else should bend to their will. This is the problem that I have with most religionists, they seem to feel that the fact that their views are so strongly felt, somehow means that this gives them more weight than the views of others.

    Personally I feel that abortion is a horrible thing for a woman to go through and that there is almost always a better solution, however, I am never going to be a terrified teenager who finds herself pregnant, so while I have my views and I will express them, I do not feel that I have the right to demand that my views are enforced on those who may be in that position.

  • Catcher in the Rye

    My point was probably a bit too subtle for some. I will explain.

    Firstly, I don’t understand people who say that they’re against something because it’s immoral. That implies that you are against it because you read it in a book somewhere or someone told you that it was wrong. My hesitancy to commit murder is not because I was told it is a bad idea. Murder is wrong for a whole lot of reasons. Our opposition to it comes from our human compassion for others, but also from the understanding that if murder can be visited upon a stranger, it could also be visited upon us or someone close to us.

    But if you want to go down that road – I think it’s immoral to force a woman to carry around a clinically dead corpse floating inside her womb for nine months. I also think it’s immoral to force a woman to carry her rapist’s baby. In general I think it’s immoral to force a woman to continue with a pregnancy when she has made up her mind that she does not want to do so, and that the pregnancy is in early enough stages where the medical consensus says that the fetus is not viable outside of the womb.

    But an argument where people simply state their moral view is not interesting. An argument where people deal with the facts and the problems faced by legislators in finding a balance between the needs of people in society is far more interesting, but it’s obvious that I’m not going to find one here.

    The position of the various churches, and of pro-life campaigners who say that abortion is a straightforward, black and white matter, are all bunk. The Catholic Church accepts that murder is necessary in certain circumstances, such as in a just war. And to my knowledge the church has made no threats to excommunicate legislators, officials or prison staff who work in jurisdictions where the death penalty is legal in the United States.

    If the church can find ways to overlook such circumstances, then I am at a loss to understand why it cannot find ways to overlook circumstances such as fatal fetal abnormality.

    BTW I also did not say there is, or should be, a limitation on people advocating pro life opinions. It’s generally the mark of a thick person that they regard disagreement or dissent from their expressed views as an attempt to stifle their freedom of speech or opinion.

  • Korhomme

    Firstly, thanks to all commentators for your views. As far as murder might be justifiable, and without trying to introduce elements of Godwin’s law, a case can be argued wherein it is appropriate. Agreed, that murder of an innocent is a moral outrage against their inherent rights, one that entirely removes their right to life and to personal autonomy. Yet surely there are, and have been, people whose attitudes and actions are and have been so odious that their removal might be a “good” in that their elimination removes their ability to induce even more wrongs; it’s the ‘greater good’ argument.

    Secondly, I was reminded too late for the main post of the changing theological view. Life, it is dogmatically asserted, begins at the “point of conception”, that is the entry of a sperm into an ovum (though whether this is into the cytoplasm or into the nucleus of the cell seems not to be defined; perhaps it’s not relevant). Previously, in the middle ages, St Thomas Aquinas largely codified the teachings of the church. His view of pregnancy seems to have been that, initially, the foetus develops in a sort of “vegetative” state; this then undergoes changes, and finally, at the moment of “ensoulment” life, as we understand it, begins. This ensoulment happens at the time of quickening, around 16-18 weeks into a pregnancy. Beforehand the embryo/foetus wasn’t “alive”, and therefore its artificial destruction wasn’t a matter that concerned the church.

  • Korhomme

    Passions in the arguments about whether abortion is murder are often intense. “Antis”, particularly in the US, have resorted to violence; some 8 people there working at clinics that offer abortions have been murdered. Pro-life organisations condemn this violence. There is a Wikipedia page on ‘Anti-abortion violence’.

  • William Cable

    ‘Yes, you are justified in speaking out against it, you are justified in trying to persuade people of your opinion until such time as your opinion becomes the majority opinion and therefore carries enough political clout to become law. That is how democracy works.’

    That is what they have done

    ‘What those who feel that abortion is murder are not entitled to do is demand that their opinion is so important that even if it is a minority opinion then everyone else should bend to their will.’

    They aren’t demanding people bend to their will, they are exercising their democratic right as stated above to oppose and seek to persuade. Those who have been elected into a legislature implicitly have the right to vote as their conscience dictates. Your argument is just a fudge to justify never allowing them to speak out.

  • William Cable

    ‘But if you want to go down that road – I think it’s immoral to force a woman to carry around a clinically dead corpse floating inside her womb for nine months. I also think it’s immoral to force a woman to carry her rapist’s baby.’

    I’d agree with you there.

    ‘In general I think it’s immoral to force a woman to continue with a pregnancy when she has made up her mind that she does not want to do so, and that the pregnancy is in early enough stages where the medical consensus says that the fetus is not viable outside of the womb.’

    And here your argument fails. Viability is a moral irrelevance. Some one on kidney dialysis isn’t ‘viable’ it doesn’t alter their personhood, same here.

    ‘BTW I also did not say there is, or should be, a limitation on people advocating pro life opinions. It’s generally the mark of a thick person that they regard disagreement or dissent from their expressed views as an attempt to stifle their freedom of speech or opinion.’

    It is generally the sign of a thick person that they think calling someone thick is a sensible argument. The implication in your previous post was quite clear, as you were using it as an argument as to why you think prolifers should not be opposing this measure, so logically that means you think the fact that a majority (supposedly) support abortion means prolifers are wrong to speak out against it.

    If you truly have respect for free speech and debate then you will argue against their arguments, not the very act of them making those argument.