Westminster steps in after Northern Ireland fails to comply with abortion law change – how it happened

Abortion was decriminalised in Northern Ireland in October 2019. In March the following year, the legal framework was in place to provide terminations. A year later, though, it hasn’t happened. The Department of Health in Northern Ireland hasn’t provided a clear plan to commission permanent abortion services that would ensure provision would be budgeted for and available throughout all of Northern Ireland.

Now Westminster has had to intervene to ensure women in Northern Ireland can access abortion services they are legally entitled to. Abortions can be carried out in all circumstances up to week 12 of pregnancy, until week 24 if continuing the pregnancy would risk injury to the woman’s physical or mental health, and without a time limit in cases of severe or fatal foetal abnormality or risk to the life of the pregnant woman.

Brandon Lewis, the secretary of state for Northern Ireland, has introduced new regulations that will compel the Department of Health in Northern Ireland to commission services. The Northern Ireland Human Rights Commission has also launched a judicial review over the failure to enable women in Northern Ireland to get access to abortion since it was decriminalised.

The Northern Ireland health minister, Robin Swann of the Ulster Unionist Party, maintains that commissioning of services must be agreed by the five-party coalition Executive rather than his department as it is a controversial or significant decision. Party agreement on significant issues is part of the power-sharing institution that aims to protect minority groups from majority decision-making. Power-sharing is in place to protect against sectarianism, it is unclear why it should be applied to the commissioning of abortion services.

It’s common to see political wrangling hold up change on abortion in Northern Ireland. And opponents also regularly use institutional processes as blocking devices. At various points in the past when abortion laws have been considered by Westminster, politicians and religious leaders have written letters arguing that the peace process would be under threat by any change to abortion laws. This approach has worked in the past as Westminster mostly wished to stay out of Northern Ireland issues. These same groups have also argued that abortion laws are being forced on Northern Ireland without consent. Opinion polls, however, point to public support for liberalising the law.

Now, some are arguing that Westminster is overreaching its powers by stepping in to ensure the Northern Ireland government complies with the law introduced in its jurisdiction a year ago. Abortion laws were introduced via Westminster during the three-year period when the Northern Ireland Assembly was not in operation because power-sharing had collapsed. The move came in response to UN recommendations on ending discrimination against women in Northern Ireland. As a human rights issue, it was predominantly a matter for Westminster rather than a devolved power.

Making do

And while women are still not being provided with abortion services, plenty of parliamentary effort in Northern Ireland has gone into moving in the opposite direction.

Paul Givan, a Democratic Unionist Party assembly member, has put forward a private member’s bill that aims to remove the grounds for abortion in cases of severe foetal impairment. He presented this proposal in February and it is now being considered by parliamentary committees before potentially being introduced into law.

During all of this, women have continued to need access to abortion. Health trusts in Northern Ireland have been providing interim services for early medical abortion (just over 1,000 women have accessed these services since April 2020). The services are being provided on an ad hoc basis by a few staff, often on top of their other duties. Lack of commissioning also means a lack of public health information on abortion which means those seeking abortion may still end up in contact with rogue pregnancy clinics.

During the pandemic, women in Great Britain were given access to at-home abortion pills after phone consultations. These services were not provided in Northern Ireland. Those of a gestation over ten weeks or who require surgical abortion have been forced to travel to England during the pandemic (it is estimated that over 100 women have travelled in the past year). The situation has caused immense distress, with reports of attempted suicide by women unable to access care.

Intervention by Westminster is a positive development to ensure access to abortion for women in Northern Ireland, but it will most likely not be the final step in the story of abortion access in Northern Ireland. After all, politicians in Northern Ireland are already attempting to restrict the new, human-rights-compliant, legal framework even before it has been put into practice.