A U-Turn on Abortion?

David Ford (Alliance), the Justice Minister in the NI Assembly, issued a consultation (which I wrote about here) about reform of abortion law in N Ireland, though he restricted it to fatal (lethal) foetal abnormality and pregnancy after rape and incest.

Following this, he issued his recommendations (which I discussed here), including:

After full and careful consideration of the evidence submitted, I have concluded that to change the law along the lines outlined in the consultation paper is the right thing to do. In the limited circumstances of a fetal abnormality which is likely to cause death either before birth, during birth or in an initial period after birth, and where no treatment other than palliative care could be offered to improve the chances of survival, my view is that the health and wellbeing of the woman must take priority and that the law should be clear and offer certainty.

I therefore intend to proceed to ask the Executive for its approval to bring forward legislation to the Assembly which would allow for termination of pregnancy in these tragic cases.

It’s quite clear that he intended to bring forth legislation to permit abortion in cases of fatal foetal abnormality. Of course, such a change would not demand that a woman carrying such a foetus must abort it. (‘If you don’t like it, don’t have one.’)

Peter Robinson (DUP), the First Minister in the NI Executive, made a statement during an interview on BBCNI TV last night, indicating that he did not think that new legislation was appropriate, favouring rather ‘guidelines’. Mr Ford was taken by surprise by this. The BBC has a report of what happened (here), with a short summary of the legal position at present.

Laws are by necessity written in legalistic language, and ‘guidelines’ set out to explain what is permissible and what is not permissible in more easily understandable English. Guidelines cannot alter the law.

Before 1861, abortion prior to ‘quickening’ (around 16-18 weeks gestation) was not criminalised under common law.

The Offences against the Person Act 1861 forms the basis of abortion law here. It makes it a criminal offence both to perform an abortion and for a woman to undergo one. There are no exceptions; however, there is some ‘wriggle room’ available in N Ireland. A medical abortion, that is one using a combination of pills is apparently not illegal—it is only available up to about 9 weeks gestation; neither is an abortion when the mother’s physical or mental health is seriously endangered.

Some might say that carrying a foetus with a fatal abnormality might well seriously endanger a woman’s health. Mr Robinson’s proposed guidelines might try to take account of this, though it is difficult to see how these could apply to all such cases.

The DUP describe themselves as ‘socially conservative’, and what appear to be their espoused positions on abortion, equal marriage and the criminalisation of payment for sexual services would confirm this.

Social conditions were rather different in 1861; education of boys and girls wasn’t wholly widespread; girls couldn’t go to university; children used to work long hours in dangerous conditions in factories; little boys had to climb chimneys to clean them; there were no labour-saving household appliances; armies of young women were in domestic service, and the age of consent was 12 years.

I cannot really imagine the most socially conservative amongst us would want to return to these ‘traditional’ values. Yet some of our politicians want to keep other (sexual) mores as if nothing had changed in the last 150 years.

Update: Since the above was written, a further article has appeared on the BBC website, here. In it, Mr E Poots, the former Minister of Health, confirms that it would require a change in the law for abortion in cases of fatal foetal abnormality for the procedure to be lawful; and that guidelines cannot alter the present situation.

  • chrisjones2

    This is an utter disgrace and will put the lives of women at risk and treats them as second class chattels.

    The issue is that our failed political system allows small interest groups to use petitions of concern to block everything from social reforms to the investigation and exposure of graft corruption and gross incompetence.

    The only thing we can do is deny them legitimacy and don’t vote at all while we wait for someone to challenge this nonsense judicially

  • mickfealty

    I’m tempted to do a blog on this with a slightly more nuanced interpretation of Robbo’s remarks. Some very poor baiting abroad.. And didn’t Marty and big Paisley not have an agreement not to touch this?

  • Dan

    Guidelines, legalese….they’ll do anything rather than deliver the solution any rational decent compassionate human being would want for women in such situations. Travelling to England is their punishment, by the sounds of it.
    Their Christianity (on both sides of the divide!) exists in words only, not in deed.
    Pain, heartbreak and misery, never mind the threat to life, and financial cost, matter not a jot to these zealots.
    The woman could die in agony and their faith would find a way to make it her fault.

  • Granni Trixie

    Sorry but I think that an aspect of the post is inaccurate in that whilst DF was consulting on FFA cases and those of incest and rape, he was recommending the former as he felt it required this Leadership to get through,though still open to what his ultimate view would be on the latter when he read respondents to the consultation.

    This is my understanding anyway – will check out and get back to you should I find anything different.

  • Ernekid

    would it be possible for Westminster to table an amendment to current abortion legislation that exists in Great Britain extending it to Northern Ireland? It’s clear that we are never going to have proper legislation from the Assembly on this issue. Westminster remains sovereign over the devolved assembly’s so why can’t it just by pass Stormont and end this farce?

  • Granni Trixie

    As is obvious, abortion can be political suicide and Ni doesn’t do nuance.

  • Granni Trixie

    It’s hardly inspiring to find that FM didn’t seem aware that guidelines are based on interpretations of the law …doh. He has been told already by Poots that guidelines won’t cut the mustard what is required is a change in the law to cater for these limited circumstances.

    I honestly don’t thnk he has the will to do what is required to help women in such extreme circumstances.
    Have the DUP never heard of joined up government and taking responsibility?

  • chrisjones2

    Well lets see what the nuanced interpretation is and , of course, this is said a week ahead of a vote and what actually happens in due course may be quite different once the sheep have been penned for another 5 years. Its also noticeable that Alliance are on their High Horse on this (a nag of very dubious wind) when last week they couldn’t find the time to attend Stormont and vote on Gay Marriage

    Marty and big Paisley may have had an agreement not to touch this but I dont think that this pact between the Unlikely Lads trumps the rights of Northern Ireland women ?

  • Korhomme

    As I understand it, Health is a devolved matter for which the Assembly is wholly responsible. Even when we had direct rule, the Secretary of State didn’t change this aspect of health legislation.

  • Korhomme

    Mick, I don’t do nuance, at least not here; I try to report dispassionately on the facts as reported, so I look forward to reading your views.

  • kalista63

    What’s this about a postcard campaign by an evangelical group against the policy change?

  • Granni Trixie

    Sorry again to be the one to correct the record but it is inaccurate to say that Alliance MLas “couldn’t be bothered” to attend the vote on gay marriage. Instead 3 of them who attended opted to abstain which for them was movement from the last vote in the right direction. They were therefore going against Alliance policy as there is not a free vote.
    All other Alliance MLAs voted for.
    Many regret this state of affairs though some do not. This reflects the fact that Alliance draws in a broad church of opinion and as with many other issues and policies know they have to work at it to persuade colleagues to change. a microcosm of society in NI I perhaps?

    Personally I am unambiguously supportive of the proposed marriage change …anything that makes LGBT people feel more respected is good in my book – they have had to put up with enough shit in this place – the least we can do is acceed to their demand,

  • Laurence Rocke

    The only interest group that is big enough to use PoCs is the DUP and they certainly have used them at every opportunity. Don’t blame the others for something they can’t and haven’t done (except in a few cases where two or more parties have co-operated). You may believe that denying them their vote will matter a jot. I prefer to use my vote and try to kick them out of power.
    And I agree entirely with your first sentence, Chris.

  • Mister_Joe

    They don’t do leadership either. Usually the case of “There goes the mob so I must follow them because I’m their leader”.

  • chrisjones2

    SF have too to be fair,

  • chrisjones2

    My apologies…you are right.Three of them couldn’t be bothered or felt personally compelled to help impose their religious views on people who just want to live like the rest of us.

    Had they voted for the motion it would have been a majority for and the abuse of the DUP would have been further exposed

  • Zig70

    You want Westminster to overrule the democratic decision in Stormont because you don’t agree with who/what your neighbours voted for? I generally avoid commenting on abortion. It’s a minefield. I wouldn’t go as far as calling abortion for convenience murder, many here would, but it’s certainly not what I would want as a social norm. If you can draw a clean line between that and general consensus of what is moral/right then you are better than me.

  • tmitch57

    It isn’t only in NI or even on the island as a whole that abortion is a controversial and politically fraught issue. In America many professional politicians were happy to have the Supreme Court handle the subject with a very legally-poor decision. But as with the Kansas-Nebraska Act in 1854 Roe v. Wade (Jan. 1973) mobilized a wave of popular revolt against the decision by both conservative Catholics and Evangelical Protestants–similar to the religious composition of NI. Had the issue been left to state legislatures a compromise probably would have been reached by the end of the decade that would have been similar to the Roe v. Wade decision in its major aspects but would have allowed abortions only during the first trimester.

    `

  • mickfealty

    Apparently there are no legal exceptions Korhomme. Are you sure about that nine week thing?

    Besides, I’m not sure how my good Mr Ford thinks he can get legislation when the Executive has failed even to agree guidelines.

    Strikes me someone is playing an electoral game of heroic but futile gestures here.

  • Granni Trixie

    I thnk you are being unfair here Mick (wot,on Slugger) I do not thnk for one minute that DF took this on as a political stunt in fact it’s quite brave of him I say.
    For one thing he would not even get backing from withn APNI itself to an abortion proposal ….were it not that he took people with him by explaining v clearly this particular kind of case affecting a narrow band of people. I imagine DF was as shocked as any of us when PR announced the u-turn on TV on Thurs.

    From listening on radio to the mother of a women in exactly this situation, her family, in talking to Poots and PR were left with the impression that DUP would be amenable to a change in the law. In fact they had a letter from Poots to say just that. The women wept on the radio yesterday saying she felt let down by the DUP for this reason.

  • Gopher

    For objectivities sake and Im very much pro choice as far as If a woman wants an abortion they she should be allowed to have one but one has to question Fords timing and most definetly his refusal to include the right to abortion due to rape in the proposed legislation. It seems to me, especially after the party failed to support him 100% on gay marriage he has presented something he can get past his party not which the wider public wants (we dont know for certain unless there is a referendum).

    We know McDonnell and the SDLP will not support abortion in any form one suspects most of the UUP and DUP although having a free vote wont support it and SF will likely have Gerry Kelly presenting the Pro choice arguement. To me before an Election that puts Robinson politically in a tight spot and we dont know who and from what parties have approached Peter secretly on this. Why did Ford not wait until after the election when cooler heads and more serious decisions can be made?

    As I can see from the posting no matter which way anyone else votes its the DUP who end up carrying the can on this one much the same as Gay marriage which like it or not (and I dont give a monkies) the SDLP, UUP and Alliance could not deliver a majority even with the support of Gerry (Kelly)

    Nope the fault with getting legislation on Gay Marriage and Abortion is much the same as what is wrong with the Assembly. Your all in government together, you all agree except when you can embarrass another party and you never waste an opportunity. So the fault lies with the SDLP the UUP and Alliance for not going into opposition TOGETHER and agreeing a unified code on moral issues like gay marriage and abortion and maintaining vote discipline.

    In the meantime until you get your act together you will forgive me for still voting for the one party that can get rid of passenger duty which is more useful to me than faux moral indignation

  • Granni Trixie

    I thnk its Evangekical Alliance and Bernie Smiths group Precious Life which organised postcard campaign but I don’t know the numbers.

  • Korhomme

    As you say, Mick, the original Act allows of no exceptions in any circumstances. However, in the 1930s Alec Bourne, who had performed an abortion on a young woman who had been raped, told the police he was going to perform an abortion on her, proceeded to do the abortion, and was subsequently charged. He was found not guilty. As I understand it, part of the argument was: if the Act says “it is illegal to do an illegal abortion” then “there must be circumstances when it is legal to do a legal abortion”.

    Several other Acts impinge on the 1861 Act; hence it is not illegal to perform an abortion when the life of the woman is in danger—even if this would seem to be prohibited under the original Act. The DoJ published 30 pages of Draft guidance:

    http://www.dhsspsni.gov.uk/guidance-limited-circumstances-termination-pregnancy-april-2013.pdf

    If I understand correctly, these guidelines have not been accepted by the Executive. The guidelines make it quite clear that guidelines cannot change the law; they cannot make abortion for fatal foetal abnormality legal (when this is the only factor). In this, Mr Robinson’s view is entirely incorrect.

    Abortion, in 1861, implied the physical use of an instrument, or the use of pills of uncertain efficacy. Abortifacient pills are a much more recent development. They are only effective up to about 9 weeks gestation. I’m not entirely sure of their legality here, though I had understood that their use wasn’t illegal—but I may be incorrect. Such pills can be bought over the internet.

    The judicial manoeuvres used to ‘get round’ the 1861 Act, to permit abortion when the woman’s life is in danger can be seen as an attempt at compassion. And they also show that the legal status here is so problematical for both women and practitioners; it should not be necessary for practitioners to have to apply to the High Court for clarity, and it ought not to be the Court’s place to decide on medical practice when the law is unclear.

    Note too, that the 1967 Act, which doesn’t apply here, does not technically decriminalise abortion. Rather, it provides a ‘legal defence’ provided practitioners follow the rules laid down—two practitioners must agree that an abortion is necessary, and that the abortion must normally take place before 24 weeks gestation. (The 1967 Act specifies 28 weeks, but this was subsequently revised downwards.)

    Further, abortion has been recorded for several thousand years, though sometimes criminalised. Jesus lived in a Roman province. Roman law at the time did not criminalise abortion, infanticide or child abandonment.

    There is also a feminist argument, along the lines of criminalising abortion is an example of male patronage and patrimony, where women are seen as second-class citizens and ought to be under the control of men; but I am no way competent to discuss this further.

    Briefly, the law in N Ireland is a mess, long overdue for clarification, and our legislators ought to have the courage and determination to face up to the demands of the 21st century, and to act accordingly—even if this means acting as leaders and not followers.

  • Granni Trixie

    Cooperation is one thing but I cannot envision the SDLP, Alliance and UUP getting together for opposition or any purpose. Too much energy would be going into managing internal differences in worldview and policies. I personally couldn’t hack it ( bearing in mind that if normal politics prevailed I would be a natural Labour supporter).

  • Granni Trixie

    Persuasion and the art of the possible is the name of the game.

  • USA

    A letter from America to the progressive thinkers of East Belfast.
    Let’s be honest, we all know that since it’s inception the DUP, and their supporters in the Orange Order, have been quite hostile toward the Catholic community. In recent years their antipathy toward the LGBT community has also become clear for all to see. Examples include the DUP standing for gay blood bans and while opposing gay marriage. Some in their ranks recently even expressed a desire to see gays thrown in prison, actually criminalize gay people. That’s Dickensian. Peter Robinson has not moved against any in his party that hold such bigoted views. To the contrary, during his tenure, he has elevated people like Poots and Jim Wells to cabinet positions. And let’s not forget the DUP’s treatment of those in our community who enjoy the Irish language. Again no sanction from Peter Robinson against the bigoted and embarrassing behavior of men like Gregory Cambell. Has he really nothing better to be doing with himself? Last year the mask slipped and we now know what Peter Robinson and his Pastor McConnell think of Muslims. But recently, through Peter Robinson’s comments on the Abortion bill, we see the rights of women now being trampled on too. Is Peter Robinson’s idea of female equality to let women do his shopping? Does he trust Catholic women and Muslim women to do his shopping?

    In proposing “guidelines” as a way forward on the Abortion issue Robinson is either kicking important legislation regarding women’s rights into the ditch, or he is displaying a colossal ignorance about women’s issues and how to best address them. But then when you think about it, issues involving marriage and women did not end well for Peter in the past. He is as useful on these matters as a Catholic priest. It’s a woman’s body, she is in charge of it. Not the DUP or the priests. Do us all a favour and vote for Niaomi Long in East Belfast as that is the only place where electoral defeat will cause the DUP to think again. The people of East Belfast can save us all from the DUP’s fundamentalist bullshit. They make NI look backward in the eyes of the world. And don’t be fooled by the DUP election time claims about influencing the London govt. After the election neither Tories nor Labour would touch the DUP with a barge pole. And remember East Belfast, Jesus Saves, but George Best scored the rebound.

  • Heather Richardson

    A medical abortion (i.e. one brought about by taking tablets) can be carried out in NI up to 9 weeks. That’s one of the services offered – perfectly legally – by the Marie Stopes clinic in Belfast.

  • Heather Richardson

    Here’s the info from the DoJ site: “there were 23,622 petition signatures opposing change. The petition, called Project Love, was organised by Every Life Counts Ireland. It was made up of 18,000 postcards, which were delivered to the Department by Precious Life; a further 2,197 sent directly to the Department and 3,425signatures to the electronic version of the petition on a website called CitizenGo.org.”

  • Catcher in the Rye

    Two things to say :

    (1) actually guidelines can, in practice, have an effect on the law, although I think anyone with any sense accepts that this is not the right way to approach the matter.

    Look at the John Downey case (bear with me). Despite the evidence in the possession of the prosecuting authorities, the judge ruled that a prosecution could not proceed because the government had made a promise that there wouldn’t be one. The ruling said that when the government officially makes a promise that it will not do something, it cannot go back on its word. This is to do with upholding the government’s authority and good word.

    If the Department of Justice or the Department of Health issued guidelines defining the circumstances under which a doctor performing an abortion could not be held to be breaking the law, but then the police identified a case of abortion and decided to proceed with a prosecution, surely the judge would have to refer to the jurisprudence around Downey and the cases which preceded it ?

    (2) Peter Robinson made a clear u-turn for purely expedient electoral purposes. Everyone was led to believe that the DUP would allow this through to the floor of the assembly. This included the Justice Minister, the family of the lady whose heartbreaking case inspired the process to change the law, and apparently the backwoodsmen of the DUP.

    The evidence for this is that Peter Robinson has had approximately four weeks in which to announce the decision that Ford’s proposed bill would not pass the executive (as far as I know the bill has not even been drafted yet – so the decision is not a technicality with the bill’s detail).

    Robinson has done this because he thinks that highlighting abortion will bring the religious fundamentalists to his side and dissuade them from voting Alliance in East Belfast. Like I said – purely cynical electoral politics, and a shabby way to treat a family who went through everything that comes with fatal fetal abnormality.

  • Zig70

    Lessons from america on right wing Christian fundamentalist politics. Well, I suppose you do have experience on your side. At least the DUP can’t hang us.. yet. http://www.belfasttelegraph.co.uk/news/northern-ireland/dup-mp-jeffrey-donaldson-wants-death-penalty-restored-do-you-agree-28643447.html

  • Dan

    ‘our community’?

  • Korhomme

    That is my understanding. I don’t see how this is possible when the law is so explicit. Can anyone explain, please?

  • USA

    Good spot Dan. Didn’t even know I had written that. I was born in Belfast in the 1960’s. Lived there through the 70’s and most of the 80’s. Left for Uni in England, spent 5 years in England and 24 years in the US. Belfast was my childhood home and I still visit often. Perhaps that’s why I still view myself as a part of the “community”.

  • USA

    Not sure where you are going with that one Zig. They don’t “hang” convicted criminals here. Perhaps you are referring to the fact that a small number of US States still have the death penalty on the statue books. In the US States have rights, think of it as similar to devolution in Scotland, Wales etc.
    I am against the death penalty as are the majority of people in the State where I live. That is why we do not execute people in this state. I do not believe any state in the US uses hanging as a punishment.

  • USA

    Gopher,
    Above you blamed all the parties on the specific issues of gay marriage and abortion. However a look at what we know shows a much clearer picture. For example, on the gay marriage vote not one DUP MLA voted in favor of gay marriage, NOT ONE. The DUP had even lined up a petition of concern should the vote go against them. They are fighting it by any means necessary. Indeed only one UUP MLA, voted in favour. So of the 51 DUP / UUP MLA’s 98% voted against the gay marriage bill. Given that SF proposed the gay marriage bill and the SDLP supported it, I hardly think we can blame them equally for it’s defeat. Nearly 80% of Alliance MLA’s also supported the bill, two did not. One independent unionist (sturgeon?), and two NI21 (Basil McCrea + McAllister) also voted in favour of the bill.
    Credit and blame where it’s due, depending on your position of course. It’s just too easy to blame everyone. Let’s you ignore the realities and the tough decisions that might entail.

  • Abucs

    It also hamstrings appointments to the Supreme Court. With the country so divided one or two appointments tips the balance and this must always be considered when making appointments. Not a good situation. It also paralyses politics as well because people cannot get past this issue and it seems to be forever divisively sitting in the background. Again, not a good situation.

  • USA

    BTW. I grew up in East Belfast.

  • Newman

    Abortion will not go away as an issue because the idea that a foetus is not a human being or if you like a human being with potential is unconvincing. Roe v Wade did not settle the matter in the USA, it opened up a wound in civic discussion that has never healed. We recently had a British parliament refuse to outlaw gender specific abortions on specious grounds..again, no outcry from those who see autonomy and choice as the supreme virtues.

  • lukeuser

    I didn’t think Alliance get many votes from religious fundamentalists anyhow…it’s probably more aimed at voters of the other unionist parties. I suspect moving to the right is simply the default DUP election campaign move.

  • tmitch57

    Roe v. Wade opened up such a controversy because it was so transparently a political diktat rather than a ruling based on the actual text of the Constitution and existing legal history. So Americans with a traditional religious or a conservative political background reacted to the decision in the same way that many Britons react to decisions made in Brussels. I am perfectly willing to accept a decision like Roe v. Wade if it is arrived at democratically by elected state legislators, which is the way it should have been decided under the American system.

  • Abucs

    Yes it is interesting to read the life of ‘Jane Roe’, poor woman.

    http://en.wikipedia.org/wiki/Norma_McCorvey

    She claims she was the dupe who lawyers wanted to use to change the abortion law which is another example of judicial activism. Her conversion to pro-life means that both the original litigants are now in agreement but the courts have decided against both of them for the entire country. This is not a good situation in regards for respect of the law.

    ‘Jane Roe’ is another person who has claimed to be no longer homosexual and I don’t think enough of such people get (dare I say it) ‘equal’ coverage for their life experiences. That is not to button hole everyone to be the same as ‘Jane Roe’ but these people do exist and it should be recognised even if it does destroy a few ‘forced ideologies’ and ‘dodgy dogmas’ along the way.

  • Zig70

    I guess I was just referring to your letter from America opener as representing America as a whole where you have a republican party that has many of the socially conservative views held by the DUP. Hanging was just a lazy reference to capital punishment and I believe 81% of republicans favour the death penalty and also a good percentage of the democrats. So when I read a ‘letter from America’ espousing social liberalism, in a week of the Baltimore riots and reports that 1 in 10 black Americans are likely to end up in prison I thought wtf.

  • USA

    And where exactly did you read 1 in 10 African Americans are likely to end up in prison? Link ? Or indeed, a link supporting any of your “statistics”.

  • Korhomme

    I have also seen similar statistics to those that Zig70 references. As I remember, the US incarcerates about 2% of the population, abut 85% of whom are African-American—though African-American form about 25% of the population. A young African-American man certainly has a very high chance of being imprisoned.

  • Zig70

    The prison stats were from an interview with Bryan Stevenson which left an impression on me. http://www.theguardian.com/us-news/2015/feb/01/bryan-stevenson-americas-mandela . The stats are actually worse. http://en.wikipedia.org/wiki/Statistics_of_incarcerated_African-American_males. The death penalty stats can be found in http://www.gallup.com/poll/159770/death-penalty-support-stable.aspx

  • Korhomme

    Thanks; not quite the stats that I remember, but still, horrifying enough.

  • Granni Trixie

    Good call. I identify with what you are saying as although I haven’t lived and worked in WB since mid 90s, that ‘community’ is a key part of my present self identity. I love it so much thAt I go out of my way to do weekly food shop on Andytown Road!

  • USA

    They are certainly some startling statistics Zig. Certainly give pause for thought and cannot be overlooked. Thank you for pointing this out.

  • Korhomme

    Update:

    “The Offences against the Person Act 1861 forms the basis of abortion law
    here. It makes it a criminal offence both to perform an abortion and
    for a woman to undergo one. There are no exceptions; however, there is
    some ‘wriggle room’ available in N Ireland. A medical abortion, that is one using a combination of pills is
    apparently not illegal—it is only available up to about 9 weeks
    gestation; neither is an abortion when the mother’s physical or mental
    health is seriously endangered.”

    I have checked up on ‘wriggle room’. The 1861 Act does not refer to any method of procuring an abortion; all methods are equally unlawful. An abortion procured using medical means—pills—is just as illegal as an abortion produced by any other means. The only way that an abortion in N Ireland is not illegal relates to serious endangerment to the mother’s mental or physical health. The Marie Stopes clinic operates under these strictures.