The Eighth Amendment is Repealed: Now for Northern Ireland

On 25th May 2018, Ireland voted overwhelmingly in favour of repealing the Eighth Amendment to its constitution by an overwhelming majority of 66.4%. The Eighth Amendment equated the life of the ‘unborn’ with that of the pregnant woman, imposing a constitutional ban on abortion in all circumstances except where the life of the pregnant woman is endangered. The Amendment was introduced by referendum in 1983 amid anti-choice fears that abortion would be permitted by the court, as occurred in the landmark US decision in Roe v Wade.

Pro-choice campaigners have protested against the Amendment since it was enacted. The Eighth Amendment made it unlawful for a pregnant woman to have an abortion if she had been raped. Even if the foetus posed a risk to the woman’s health, or if an abnormality meant the foetus would not survive, an abortion was still prohibited. Socio-economic circumstances, such as low income, poverty, or even homelessness, or if they were a minor, were also insufficient grounds for an abortion.

Following the result of the referendum, the Irish government are proposing legislation that would allow abortions for pregnancies of up to twelve weeks, which is the same as several other European countries including Germany and Denmark. After twelve weeks, abortions will be restricted to circumstances where there is a serious risk to the life or health of the pregnant woman, or where there is a fatal foetal abnormality. Once this legislation comes into force, Northern Ireland will be the only part of Britain and Ireland without access to safe, legal abortion services.

In Northern Ireland, abortion is illegal in all circumstances apart from where it is necessary to save the life of the pregnant woman or where there is a serious risk to their long-term mental or physical health. While this is marginally less restrictive than the Irish position, the Offences Against the Person Act 1981 (which is also effective in the rest of the UK) imposes a maximum life sentence for abortion, whereas Ireland reduced the sentence to a maximum of fourteen years in 2013. Post-referendum, Northern Ireland now has one of the most restrictive abortion laws in Europe. Malta and Andorra are the only European states with more restrictive laws, but both countries have significantly shorter punitive provisions than Northern Ireland. The Abortion Act 1967, which created exceptions to the criminal offence, applies in all parts of the UK except Northern Ireland.

This has long been ignored by British MPs and feminists, but the situation in Northern Ireland is finally receiving attention following the Irish referendum. In the past few weeks, there have been protests and marches in Belfast, an emergency debate in Westminster prompted by Labour MP Stella Creasy, and the Supreme Court of the UK has found that Northern Ireland’s abortion law violates human rights. But the case had to be dismissed because the Northern Ireland Human Rights Commission (NIHRC),who brought the case, did not qualify as a ‘victim’ of the existing law.

The Supreme Court nevertheless made a significant judgement. The majority of judges found that the prohibition of abortion in cases of rape, incest, and fatal foetal abnormality violated Article 8 of the European Convention on Human Rights (ECHR): the right to private life. A minority of judges also deemed it a violation of Article 3: the right to freedom from torture, inhuman, and degrading treatment. In dismissing the case, the Supreme Court could not offer a positive remedy, which would have taken the form of a declaration of incompatibility under Section 4 of the Human Rights Act 1998. This would have signalled to the UK Parliament that they should amend the law in Northern Ireland to remedy the incompatibility of the law with the ECHR (although it would still be at liberty to ignore the Supreme Court’s judgement). Despite the case being technically ‘lost’, this judgment made clear that the current legal position in Northern Ireland violates human rights and cannot be maintained.

In February of this year, the Committee on the Elimination of Discrimination Against Women (CEDAW) found that Northern Ireland’s abortion law constituted a ‘grave and systematic’ violation of human rights.The CEDAW recommended the provision of abortion services in cases of rape and fatal foetal abnormality, as well as the full decriminalisation of abortion across the UK. Likewise, Stella Creasy is seeking abortion’s decriminalisation across the UK through an amendment to the Domestic Abuse Bill, having successfully called for an emergency debate on the matter in June, which received strong cross-party support.

There are hurdles that still need to be crossed, however. Following last year’s snap election which saw Theresa May lose her majority, she made a deal with the Democratic Unionist Party (DUP), one of Northern Ireland’s strongest opponents to abortion. The Prime Minister is thus reluctant to support such an amendment. The Secretary of State for Northern Ireland, Karen Bradley, argued in Creasy’s emergency debate that abortion is a matter devolved to the Northern Irish Assembly, and so it is not for Westminster to legislate on. Yet the Northern Irish Assembly has been without an executive since January 2017 due to a breakdown in power-sharing between its two main political parties: DUP and Sinn Fein. The Assembly therefore cannot legislate on this or any other issue, and requires Westminster to take its place. The UK government has an obligation to uphold human rights standards, an obligation which, as CEDAW made clear in its report, cannot be avoided by citing devolution.

The perceived uniquely religious culture in Northern Ireland tends to suggest that there is a anti-choice stance across the population, evidenced by NI Attorney-General Jim Larkin’s comments around the NIRHC case on the ‘present political and moral judgment of Northern Ireland about the humanity of the unborn child’, providing another excuse for Westminster to avoid taking action. But recent polls show a majority support for greater access to abortion in Northern Ireland. Amnesty International found in 2016 that 58% of people felt that abortion should be decriminalised, increasing to 67% and 72% in cases of fatal foetal abnormality and rape, respectively. Evidence of public support for liberalised access to abortion cannot, however, become the key focus. Ireland required a referendum in order to amend the constitution, but no such barrier to reform exists in Northern Ireland. The government could legislate on the issue tomorrow if they wished to do so, without requiring a majority of public support.

The result of the Irish referendum adds fuel to the Northern Irish campaign for safe, legal abortion, giving the issue considerably more attention from the mainstream media, and from British MPs and feminists. The severe impact of restrictive abortion laws is now better understood following the Irish pro-choice campaign. Now is the time to learn from Irish activists in working tirelessly to raise the issue, to educate and inform people on the reality for pregnant women in Northern Ireland, and – most importantly – to take collective action. This will be a difficult fight, but certainly not a futile one. As Ireland has proven, truth and fact can change minds.