Background

The 1998 Belfast Agreement recognised ‘the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland’. It might be assumed, then, that women in Northern Ireland, being accepted as British citizens and the region being part of the United Kingdom, would share the same rights as women in every other part of the UK.

The section of the Agreement on Human Rights committed the two governments to affirming ‘in particular:

• • the right of free political thought;

• • the right to freedom and expression of religion;

• • the right to equal opportunity in all social and economic activity, regardless of class, creed, disability, gender or ethnicity.

And this section of the Agreement included a specific affirmation of ‘the right of women to full and equal political participation’. Side (Reference Side2006) argues that these measures in the Agreement gave cause for a ‘climate of guarded optimism’ about the potential to advance women's social citizenship rights in Northern Ireland.

However, there is some evidence to suggest that, even before the Agreement had been signed, agreements had already been reached between leaders of the larger political parties to restrict the type of citizenship available to women in Northern Ireland. It has been alleged that, to encourage the political parties into a power-sharing coalition, the British government agreed not to extend the 1967 Abortion Act for an unspecified length of time (Rossiter, Reference Rossiter2009). This allegation is supported by the fact that power to legislate on abortion was devolved to the Northern Ireland Assembly when criminal justice powers were devolved in 2010. Yet, it was not devolved to Scotland in the devolution settlement of 1998, despite some pressure from SNP and Conservative MPs that it should be. In the course of the Westminster debate on the Scotland Bill, one of the government's arguments against devolving abortion to Edinburgh was the threat of ‘cross-border traffic’ if there was to be a reduction in access to abortion in Scotland. When asked why this was of concern between Scotland and England but not between Northern Ireland and England, then Secretary of State Donald Dewar said: ‘it is clear that we have made a distinction between Northern Ireland and the rest of the United Kingdom for a multiplicity of pressing political and other reasons . . . The special social and political situation in Northern Ireland is not a reason for contemplating further differences in the United Kingdom in this sensitive area’ (Hansard, 1998).

If one takes citizenship to mean a ‘status bestowed on all those who are full members of a community’ (Marshall, Reference Marshall1973: 84), then women who are British citizens could reasonably expect the same civil, political and social citizenship rights in all parts of the UK, including access to legal abortion free on the NHS. Indeed, the British government urges other governments to make safe, legal abortion available as a basic human right. The Department for International Development (DFID), in a range of publications, has indicated that it considers safe and legal abortion a human right. In 2004 it expressed support for ‘countries’ efforts to fulfil reproductive rights through better social policies and practice’ (Department for International Development, 2004: 8). In 2009 it was even more explicit:

The British government's endorsement of abortion rights for women in developing countries contrasts greatly with its refusal to intervene to ensure such rights for its own citizens living in a devolved region of the UK.

The UK is a signatory to the UN Convention on the Elimination of All Discrimination Against Women (CEDAW). The Preamble to this Convention states why it is necessary, including:

The UN Committee which monitors states’ compliance with the Convention publishes Concluding Observations on the periodic reports of states’ party to the Convention, in which states explain how they have complied with their duties under CEDAW. It also issues General Recommendations on articles of the Convention. In its 1999 ‘Concluding Observations’ on the UK, the CEDAW Committee expressed concern that devolution of legislative powers to a Northern Ireland Assembly might result in the protection of women's rights being uneven across the UK and reminded the UK government that it remains responsible for the implementation of the Convention (CEDAW, 1999). In 2008, it reiterated these concerns and called on ‘the State party to give consideration to the amendment of the abortion law so as to remove punitive provisions imposed on women who undergo abortion’.

Citizenship and reproductive rights

The emphasis placed by the Belfast Agreement and the Department for International Development on the rights of women and the CEDAW concern about the potential for unevenness in women's rights across the UK can be usefully analysed in the context of the rights discourse developed in recent decades. Much of the analysis of civil, political and social rights in economically developed countries takes as its starting point the essay On Citizenship and Social Class, presented by T. H. Marshall in 1949 (Marshall, Reference Marshall1973: 64–122). Marshall's analysis and sequencing of civil, political and social rights in the eighteenth, nineteenth and twentieth centuries respectively, relates to the British situation. Even when applied there, it is problematic because of its assumption of a universal category of citizens, all of whom equally benefit from achieved citizenship rights. For example, women achieved political and civil citizenship rights later than men and the struggle for political citizenship rights preceded the achievement of some civil rights for them (Walby, Reference Walby1994). There is an extensive feminist critique of the traditional liberal gender-neutral conception of citizenship. This critique relates primarily to barriers to the exercise of citizenship rights and the conception of the ideal citizen as a paid worker in the public sphere (see, for example, Pateman, Reference Pateman1989; Lister, Reference Lister2003). Despite these limitations, Marshall's differentiation of civil, political and social rights provides a good starting point for the analysis of reproductive rights and, in particular, abortion rights in the twenty-first century.

Civil, political and social rights are interdependent but not always mutually supportive in practice, and this is particularly evident in the case of abortion. Civil citizenship rights relate to liberty of the person and property rights; social citizenship rights relate to social and economic welfare and security. Such rights are highly contested when applied to abortion. The outcome varies cross-nationally, even between welfare states that have key similarities in their broad orientation vis-à-vis the relative reliance on the state, the market and the family for the provision of services. In a comparison of four liberal welfare states, the United States, Canada, Australia and Britain, O'Connor et al. identified a difference based on the recognition of abortion as a medical and presumed social right in Britain and Australia, and as a body right, that is, ‘a personal right, attached not to a medical need but to the legal personhood of the woman’, that is a civil right, in the US and Canada (O'Connor et al., Reference O'Connor, Orloff and Shaver1999: 161).

The implications of abortion as a civil right without the ability to exercise that right, that is its non-recognition as a social right, has the consequence of dependence on the market and the associated income-based stratification in access. In contrast, the recognition of abortion as a medical right without recognition as an enforceable civil and body right, or as an enforceable social right, means access is dependent on the negotiation in each case between the woman and her doctor. It also means that regional variation even within the same political jurisdiction can be countenanced. The failure to recognise abortion as a civil and social right has the consequence of providing a field in which opposing forces continue to contest its legitimacy.

Recognition of abortion as a civil right affirms a woman's personhood and autonomy, a social right to abortion underpins these foundations for her participation in social, economic and public and political life. Ruth Lister has made a similar argument, pointing out that bodily integrity, which is at the heart of civil citizenship rights, and to which reproductive rights are central, ‘exemplifies how what have traditionally been construed as quintessentially “private” matters, are in fact preconditions of women's full and free access to the public sphere’ (Lister, Reference Lister2003: 125). While treating reproductive rights as a distinct category of rights, David Held also recognises their centrality to women's exercise of other rights. In a critique of citizenship and autonomy as analysed by Marshall and Giddens, he points to the absence of concern with reproductive rights by both. In contrast, he argues that:

But abortion is not recognised as an inalienable civil right or a social right like other social rights in the UK, as is reflected in the differential geographical access, in particular the extremely limited availability in Northern Ireland

Abortion in twenty first century Northern Ireland

The 1967 Abortion Act, on which other parts of the United Kingdom rely for law in relation to termination of pregnancy, was never extended to Northern Ireland. Abortion law in Northern Ireland is governed by the Offences Against the Person Act 1861. Section 58 of this Act states that:

The law in Northern Ireland has been widened by a number of judgements from the 1990s. Then, a number of unhappily pregnant minors, who because they were wards of court, had to seek permission from the High Court to travel to England for abortions. The judgements in those cases, and in a number of subsequent cases, indicated that abortion is legal in Northern Ireland under the terms of the 1939 ‘Bourne Judgement’, which said it is legal to end a pregnancy that would leave a woman ‘a mental or physical wreck’. This judgement, it could be argued, gave a medical and civil right to abortion. However, following these judgements, the law on abortion in Northern Ireland was said to be ‘so uncertain that it violates the standards of international human rights law’ (Lee, Reference Lee and Furedi1995). In 2001, the Family Planning Association (FPA) sought a Judicial Review of the Department of Health, Social Services and Public Safety's (DHSSPS) unwillingness to issue guidance on when abortion is legal in the region. In 2004, the Court of Appeal said that the DHSSPS must issue guidance in relation to the termination of pregnancy in Northern Ireland and investigate the difficulties in obtaining services for the legal termination of pregnancy. This ruling could be seen as seeking to introduce a social right to abortion under limited circumstances which would vindicate the civil right established in the earlier court judgements.

The DHSSPS issued guidelines early in 2007, allowing abortion when a woman's mental or physical health is in ‘grave’ danger of ‘serious and permanent damage’. In October 2007, the then Assembly Health Committee chair, Iris Robinson proposed ‘That this Assembly opposes the introduction of the proposed guidelines on the termination of pregnancy in Northern Ireland; believes that the guidelines are flawed; and calls on the Minister of Health, Social Services and Public Safety to abandon any attempt to make abortion more widely available in Northern Ireland’. The DUP, Sinn Fein and SDLP supported the motion while the Ulster Unionists opposed it and Alliance had a free vote.

A new draft set of guidelines was issued during the summer months of 2008 and were issued in March 2009 as guidance to all doctors and medical staff. The Guidance was explicit that abortion is not legal in the case of rape or foetal abnormality. However, that Guidance was also withdrawn, following a judicial review taken by the Society for the Protection of the Unborn Child, and there is currently no Guidance available to doctors in Northern Ireland. The revised guidance was issued for consultation in July 2010, with a final date for responses to the consultation of 22 October 2010. A year later, the new DUP Minister for Health, Edwin Poots, replied to a written Assembly question on when the Guidance would be published with the statement ‘I am currently considering the Guidance on the Termination of Pregnancy and as yet, no date has been set for its publication’ (DHSSPS, 2011). At the time of writing (November 2012), it had not been published.

The reality of abortion in Northern Ireland

Although abortion is not available legally in Northern Ireland, except in rare circumstances, tens of thousands of women from the region have had abortions in England since 1967. Throughout the late 1980s and 1990s, Department of Health statistics showed over 1,600 women with Northern Ireland addresses had abortions in England each year, a figure which most commentators argue was an underestimate (Department of Health, 2012). Until the election of the New Labour government in 1997, women from Northern Ireland had their abortions considerably later than was the norm in Britain. According to the 1997 figures, some 20 per cent of Northern Irish women's abortions were after twelve weeks, compared to a British norm of 11 per cent. The difference in the proportion of abortions carried out after twenty weeks was even higher. The norm in Britain was 0.9 per cent of abortions taking place after twenty weeks, while 3.2 per cent of the Northern Irish ones were after twenty weeks (Office for National Statistics, 1997).

These later abortions were due mainly to the difficulties in getting together the money to travel to England and pay for a private abortion, combined with difficulties in finding information about how to access abortion in England. While women from Northern Ireland continue to access abortion later than is the norm in Britain, the figures have shown a huge improvement since 1997. Much of this change is due to relaxation of regulations surrounding abortion introduced by the New Labour Government, so that an overnight stay is no longer necessary. Further, access to information about abortion services in England is now available via an internet search, while cheaper flights have helped women who have to travel (Rossiter, Reference Rossiter2009). As a result, in 2011, 70 per cent of women resident in Northern Ireland were accessing abortions before nine weeks gestation, which is about the same as the figures for residents of England and Wales. However, 13 per cent of women resident in Northern Ireland had their abortions over twelve weeks gestation, including 2 per cent after twenty weeks, which compares poorly with figures for residents of England and Wales where only 8.7 per cent access abortions after twelve weeks, including 1.4 per cent after twenty weeks (Department of Health, 2012).

Over the last decade, the numbers of women giving Northern Ireland addresses having abortions in England has dropped to just over 1,000 per year. The reasons for this reduction are unclear, but are likely to be due to a combination of the easier availability of emergency contraception, more women travelling to continental Europe where costs are lower (Crisis Pregnancy Agency, 2008) and, increasingly, women accessing medical abortion (the abortion pill) via the internet to self-induce illegally at home (Gomperts et al., Reference Gomperts, Jelinska, Davies, Gemzell-Danielsson and Kleiverda2008).

What little information we have about women from Northern Ireland who have abortions suggests that women from the region tend to end their pregnancies for similar reasons to women in other developed countries. The growing body of research examining the reasons why women faced with a crisis pregnancy opt for abortion indicates that the decisions are influenced by how they view motherhood. In particular, it is shaped by how they perceive their ability to be a ‘good mother’ to the potential child. Rowlands (Reference Rowlands2008) reviewed the literature on decision-making around abortion and, like Mahon et al. (Reference Mahon, Conlon and Dillon1998), found that younger women who have not begun their child-bearing often report that they are unprepared for motherhood, while older women tend to cite responsibilities ‘toward existing children or other dependants as the key reason behind their decision to opt for abortion’ (Rowlands, Reference Rowlands2008: 176).

Abortion – a class issue

There is considerable evidence that the current situation discriminates against working-class and younger women, in particular because of difficulties in raising the money to travel and fund a private abortion. About half the population of Northern Ireland live on or below the poverty line, so women from the region are particularly disadvantaged when it comes to finding money for travel and a private abortion. The London-based Abortion Support Network (ASN) provides financial support to women travelling for abortion. ASN reports that it helps roughly equal numbers of women from Northern Ireland and the Republic of Ireland. Given that the Republic of Ireland has three times the population of Northern Ireland, this means that proportionately more women from Northern Ireland are forced to seek financial assistance.Footnote ¹

The class nature of access to abortion for women from Northern Ireland has long been officially recognised. In 1994, following a consultation which received 1,800 responses, the Westminster-appointed Standing Advisory Commission on Human Rights recommended in its 19th Report that the issue of finance should be removed from the debate. This issue, described by commentators as ‘one law for the rich, another for the poor’ (Belfast Telegraph, 2012), could be addressed by GPs being allowed to refer women from Northern Ireland to NHS hospitals in Britain, as they do for some hip and heart operations. However, in a letter dated 10 March 1999 to Glasgow MP Maria Fyfe, Northern Ireland Office Minister Adam Ingram pointed out that GP fundholders in Northern Ireland ‘are specifically prohibited’ from purchasing treatment which ‘would be illegal in Northern Ireland, such as termination of pregnancy’.

In its 2008 report to CEDAW, the Equality Commission for Northern Ireland recommended that women in Northern Ireland have ‘the same access to reproductive health care services and rights in Northern Ireland as are available in Great Britain’ (Equality Commission for Northern Ireland, 2008). Following the 2008 debate on the Human Fertilisation and Embryology Bill, when Government manoeuvring ensured there was no vote at Westminster to extend the Abortion Act to Northern Ireland, there was agitation by some MPs to allow Northern Irish women access to NHS abortions in Britain, including a debate in Westminster Hall on 15 July 2009. Responding to that debate, the then Minister of State at the Northern Ireland Office, Paul Goggins, stated that to allow access to NHS abortions: ‘we would either have to top-slice the Northern Ireland health budget to fund the compromise, which would undermine the devolution settlement, or taxpayers in England, Wales and Scotland would have to pay’ (Hansard, 2009).

Custom and practice

Given the emphasis in recent times on the personal responsibilities of citizens (Lister, Reference Lister, Holden, Kilkey and Ramia2011), it might be asked what women in Northern Ireland do to avoid unwanted pregnancies. It is almost ten years since the last time contraception was included as a topic in any survey in Northern Ireland. The Continuous Household Survey, in 2003/04, asked women aged sixteen to forty-nine about contraceptive use in the previous two years. The results were almost identical to British patterns of contraceptive use. Indeed, all the research evidence available suggests that sexual activity patterns are no different in Northern Ireland to Britain.

Smyth (Reference Smyth2006) argues that anti-abortionists have promoted a discourse about ‘Northern Ireland's proud tradition as a pro-life nation’. Yet, when asked in 2008 whether ‘you personally think it is wrong or not wrong for a woman to have an abortion if there is a strong chance of a serious defect in the baby?’, only 25 per cent of Northern Ireland Life and Times Survey respondents said ‘always wrong’ (NILT, 2008); 14 per cent made a similar response in the British Social Attitudes Survey (Park et al., Reference Park, Curtice, Thomson, Phillips, Clery and Butt2010). However, apart from this question and a quite ambiguous one about whether it is wrong for a woman to have an abortion if the family cannot afford any more children, which could elicit a similar response from those both for and against legal abortion, there has never been a rigorous testing of public opinion on abortion in Northern Ireland. The few public opinion polls that have been taken suggest that the majority of people in Northern Ireland think abortion should be available on the Health Service in the region under some circumstances. In spite of this, political discourse is overwhelmingly anti-abortion. Yet, when Marie Stopes International opened a reproductive health centre offering legal abortions in Belfast in October 2012, anti-abortionists mobilised only 200–300 protestors on its opening day and for subsequent protests. However, as in Scotland, anti-abortion campaigners can collect tens of thousands of signatures for petitions, largely at chuch gates and through schools.

Over the last twenty years, medical sociologist Colin Francome has carried out several studies of attitudes to abortion among the medical profession in Northern Ireland. His 1994 survey of gynaecologists reported (Francome, Reference Francome2004) that 59 per cent of respondents believed abortion should be legal in Northern Ireland if a woman had been raped, while 70 per cent believed it should be legal where there was evidence of fetal abnormality. A follow-up survey in 2009, to which thirty-seven of forty-two gynaecologists working in Northern Ireland responded, found that a majority of respondents would support liberalising the current abortion law, with only 32 per cent saying the law should stay as it is.

Francome's survey of GPs in Northern Ireland found that 70 per cent said the decision whether or not to continue a pregnancy should be left to the woman in consultation with her doctor. One worrying statistic from the survey of GPs is that 11 per cent of them had seen evidence of attempts at amateur abortion, although hopefully such dangerous practices are no longer happening since the abortion pill became available over the internet (Francome, Reference Francome2004).

Northern Ireland is the UK region with the highest percentage of households with children (34 per cent), compared with the UK average of 28 per cent (NISRA, 2010). Over a quarter (29 per cent) of all families in Northern Ireland have three or more children compared to a UK average of 21 per cent. While many of these larger families are planned, the fact that abortion is not available in Northern Ireland means that for low income women this is not always the case. Further, it has been asked of ‘pro-life’ politicians whether their interest in protecting potential life is only in relation to abortion (Siegal, Reference Siegel2007: 821). This is particularly relevant in Northern Ireland, which fails to mitigate its strict laws against abortion with provision of adequate facilities for mothers and children. It is the only part of the UK not to have a Childcare Strategy, and the UK government policy of Extended Schools introduced in 2002 has not been rolled out in Northern Ireland (Gray and Horgan, Reference Gray and Horgan2012). Northern Ireland is an acute example of a broader pattern that can be identified in other jurisdictions where women have little or no access to legal abortion and have little or no socio-economic support to give their children the conditions that would allow them to reach their full potential and achieve taken-for-granted educational and economic outcomes.