Consultation briefing, the “Criminal law on abortion in Northern Ireland” (Updated February 2016)

BRIEFING 2016

ABORTION IN NORTHERN IRELAND Amendments to Justice (No.2) Bill February 2016 on ‘fatal foetal abnormality, rape, incest and sexual crime.’

KEY POINTS: •

The law on abortion in Northern Ireland is unique and very different to abortion laws in Great Britain and the rest of Western Europe.

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Abortion in Northern Ireland is permitted only where the continuance of the pregnancy threatens the life of the woman, or would adversely affect her physical or mental health in a manner that is real and serious and permanent or long term.

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We celebrate this distinctive law in Northern Ireland which attempts to strike a delicate balance between protecting the life and wellbeing of the mother and her unborn child.

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The cases of life-limiting conditions and pregnancy resulting from sexual crime are incredibly complex and emotive. In this highly sensitive and polarised space we advocate for the life and dignity of each woman and unborn child. We refuse to be drawn into a false dichotomy which pits a woman’s rights against those of her child. We seek the flourishing, life and wellbeing of each woman, her family, unborn child and the wider community. We reflect this in our language, policy and practice.

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It is important to give context to the background to these proposed amendments. In early 2014 the Department of Justice (DOJ) consulted on changing the law on changing the law around ‘lethal foetal abnormality and sexual crime.’ During this consultation the Northern Ireland Human Rights Commission (NIHRC) launched a legal case against the Department of Justice because they believed the law on Northern Ireland was incompatible with the European Convention on Human Rights (ECHR). Following the consultation the DOJ recommended a change in the law to allow abortion in case of ‘lethal foetal abnormality’ but not sexual crime however no legislation was brought forward. In November 2015, Justice Horner delivered his opinion in the NIHRC case. He ruled that the law in Northern Ireland was ‘incompatible’ with the ECHR regarding abortion relating to ‘fatal foetal abnormality and sexual crime’.

Last month the Attorney General NI and the Department of Justice both decided to appeal this decision.

These proposed amendments come unexpectedly and confuse an already complex ongoing legal situation.

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The proposed amendments to the Justice Bill are being brought by Stewart Dickson, Trevor Lunn and Anna Lo from the Alliance Party, Basil McCrea from NI21 and Stephen Agnew from the Green Party. The amendments, if accepted, would essentially change the law to allow abortion in Northern Ireland on the grounds of lethal foetal abnormality and sexual crime and introduce a statutory conscientious objection clause.

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We do not support a change in the law on abortion. Rather we seek to work with others to change the culture around pregnancy crisis care.

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Practically we are calling on the DHSSPSNI to issue guidelines for medical professionals and to offer a comprehensive and tailored pathway of care to each woman who is facing a pregnancy crisis. Woman, baby and family require a co-ordinated multi-disciplinary team approach from medical practitioners, counsellors, social workers, financial/benefits advisors, chaplaincy care etc.

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We are seeking to shift the narrative from death to life; from abortion to the affirmation of life found in adoption, perinatal hospice care and relational support services.

WHERE DO WE BEGIN? •

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At the outset we acknowledge tragedy and seek to respond with compassion. These amendments raise very sensitive issues – women in crisis, babies with profoundly life-limiting disabilities and pregnancies resulting from rape and other sexual crimes. In a polarised debate we make it very clear that we advocate for the life, dignity and care of each woman and unborn child in our families and our wider community.

The inherent dignity of all - including tiny family members. A pre-born child has intrinsic value and worth as a human being, a member of our race and community. As such, the child should be afforded both protection of life and human dignity.

The ‘women’ and ‘foetuses’ mentioned in the consultation are not abstract or distant. They are us. Wives, daughters, sisters, grandchildren, neighbours and friends, our family and community members.

Suffering is part of human experience. Rather than prematurely ending life we choose to stand in solidarity alongside those who hurt. We weep with those who weep and mourn with those who mourn. We show solidarity and practical care for the sick and terminally ill, those who are traumatised or have been abused and those who are grieving. We do this in every other area of life so of course this is our response in a pregnancy crisis.

POLICY APPROACH We acknowledge that opinion will vary across society and to some degree within the Church on these issues. We seek to be clear and consistent in our policy approach for the wellbeing of everyone in our communities.

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Human life should be protected from beginning to end. We consistently oppose direct action to end a human life prematurely. Government and wider society should be extremely careful not to facilitate premature death medically, legally or culturally. From this consistent principle of life as a sacred gift not to be ended at our direction, we frame our opposition to assisted suicide and even murder. We make a clear distinction between palliative care, actions with double effects and the alleviating of suffering through medicine on the one hand and medicine being used to deliberately end a human life on the other.

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Human dignity should be afforded from beginning to end. We believe all human life should be afforded human dignity. This is why we care for those who have been displaced, abused, raped, those who are in pregnancy crisis, orphaned, in care, disabled, those who have been trafficked, the sick and the elderly, the poor and homeless. Humanity has inherent value and dignity from the pre-born to the woman in a pregnancy crisis to the most elderly members of our society. Any devaluing or de-humanising of the most vulnerable members of our families and societies affects us all.

‘The measure of progressive civilized society is how we treat our most vulnerable’ President Harry S. Trueman

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We believe that the consistency of protecting life and human dignity from beginning to end is rational and vital to robust legislation. This consistent approach strikes the balance between individual freedoms and social responsibility. This is 'social justice' and the balancing of rights, relationships and responsibilities.

This is not about people trying to protect their own beliefs or impose their views on to others. The principle of the State upholding human life and dignity for all is vital to a flourishing society.

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When the principle of protecting life and dignity is removed in particular circumstances it becomes more difficult to argue against this principle medically, legally and morally in other circumstances.

It may take time, but if the rationale is that a life is going to end anyway and an abortion is simply bringing forward the inevitable on compassionate grounds, then the basic ethical argument for euthanasia has been conceded. Using the same logic, the law must allow euthanasia in other terminal cases. If we can end the life of a pre-born child then why not allow a rational autonomous adult to end their own life at a point of their choosing after they receive a terminal prognosis? If law and medicine will enable us to legally end the life of another human being, then why not our own? In Belgium law and medicine have 'progressed' to allow child euthanasia in cases where the child is terminally ill and suffering pain. Using the principle proposed in this law, of ending a life to show compassion to child and family, there is no logical reason to oppose child euthanasia.

LANGUAGE We seek to be sensitive and honest in our language.

We recognise the agony of the situations some women find themselves in and the decisions they make. We are not trite or blind to tragedy. We do not dehumanise our opponents. We use words of compassion and empathy.

Some of those who advocate for abortion on demand deliberately use de-humanising language. Just because a word is biologically/medically accurate doesn’t mean it’s the best word to use to describe a person.

The reduction of a human being to a biological stage of development makes it easier to ignore the humanity of that child and all it could become. Words like mother and baby are only used when the baby is wanted, otherwise the baby remains a foetus/embryo. ‘Choice’ is used as a euphemism for the freedom to decide to end the life of an unborn baby. Those who oppose are told to stop imposing their views. Abortion is not just an issue of personal morality it is a social justice issue, protecting human beings from harm. It is about relationships and equality of personhood; advocating for vulnerable women and their unborn babies.

Abortion leads to death and destruction. We shift the narrative to life and flourishing. We deliberately speak of babies and tiny family members. We do not entertain the negative and dehumanising language of fatal foetal abnormality – instead we talk of babies with a life-limiting condition. We extend the recognition of human dignity to each baby whether or not they are wanted.

STATISTICS* 1. The World Health Organization estimates that there are around 40 to 50 million abortions carried out each year around the world.

2. In the UK, since the 1967 Act, there have been over 7 million abortions in England and Wales. That’s more than the population of the island of Ireland.

3. In 2011, in England and Wales there was 723,913 live births and 189,931 abortions, so for every four children born, one was aborted.

4. By the age of 45, one in three women in England and Wales will have had an abortion.

5. In the last ten years in England and Wales, out of almost two million abortions, only 4 were recorded as for the purposes of ‘to save the life of the mother.’ Overwhelmingly, most abortions are for reasons of social/personal convenience.

6. In 2014 in Northern Ireland there were approximately 50 abortions. Even if you add the 800 women who travelled to Great Britain to have an abortion, the NI abortion rate per capita is still about seven times lower than the abortion rate in the rest of the UK.

EXISTING LAW The starting point for law in Northern Ireland is that termination of pregnancies is unlawful. There is however a defence where termination is performed in good faith only for the purpose of ‘preserving the life of the woman’. This phrase has been interpreted, through case law, (particularly the Bourne case) as the continuation of the pregnancy having an adverse effect on her physical or mental health, in a manner that is real and serious and permanent or long term.

We believe that the law as it currently stands in Northern Ireland strikes a fine balance. It holds the tension between individual freedom and social responsibility. It allows action to be taken to ‘preserve a woman’s life’ even though an unintended result may be the loss of her unborn child. We believe the current law delicately holds in tension the strands of protecting the life and health and dignity of women, the unborn child and the wider community as far as possible.

CULTURE Abortion raises huge issues for our culture aside from life and death; • How we deal with disability, suffering, abuse and the most vulnerable.

• The devaluation of human dignity.

• The obsession with instant and short-term fixes.

• The abortion industry, the ultimate consumerisation of humanity, and how it is thriving in the Western worship of self, state and market.

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The wide-scale detachment of sex from marriage & relationship.

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The move away from relationship generally to individual ‘reproductive rights’.

*Statistic References 1. http://www.guttmacher.org/pubs/fb_IAW.html 2.http://www.independent.co.uk/voices/comment/abort ion-is-safe-and-it-should-be-as-available-as-easily-ascontraception-9808803.html 3. Figures from ONS and official Department of Health abortion statistics 2011.

4. http://www.bpas.org/bpaswoman/abortion 5.https://www.gov.uk/government/uploads/system/uplo ads/attachment_data/file/319460/Abortion_Statistics__ England_and_Wales_2013.pdf 6. Using figures in Table 1 & Table 2 of consultation.

A FEW MORE DETAILS What follows is a very brief analysis of the proposed amendments and some of the issues raised therein.

General •

One of our overarching concerns is that this specific change in the law could lead to further changes.

This ‘slippery slope’ argument is well rehearsed and often criticised as scare-mongering. However in the instance of abortion the argument has huge merit given what has happened in England and Wales under the 1967 Act and in most other Western countries in the last few decades. In Judge Horner’s recent decision in the NIHRC case he stated clearly, ‘the thin edge of the wedge or slippery slope arguments cannot be ignored.’

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Language. We simply state that just because language is medically approved this does not mean it is objective or neutral. De-humanising words like spastic, moron, bastard and lunatic were once medically approved. We choose not to use the language of foetus and foetal abnormality which is likely to prove lethal but baby or unborn children with a profoundly life-limiting condition. Furthermore we choose not to use the phrase ‘incompatible with life’ when talking of a human being who is already living. A stone or a piece of metal is incompatible with life.

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Hard cases make bad law. We are not convinced that using one or two tragic cases as a basis for changing the law is wise and well thought through. The drive to change the law focuses heavily on one particularly personal story of a woman who aborted a child with anencephaly which received a huge amount of media coverage. We absolutely sympathise with the women and families involved and are lobbying for better perinatal hospice care. The linking of ‘lethal foetal abnormality’ with ‘sexual crime’ in these proposed amendments is also deeply unhelpful. These are completely different situations. These two tragic areas have proved extremely difficult to legislate for in other jurisdictions. For example there are no legal provisions in GB for abortion on these specific grounds, they are covered under much wider provisions.

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Different end goals. We have witnessed ‘pro-choice’ groups use hard cases to launch campaigns like My body My Rights and Trust Women. The end goal of these campaign, alongside groups like Marie Stopes and Alliance for Choice, is the choice for any woman to end any pregnancy at any stage for any reason. We are concerned that tragic circumstances are being unwittingly exploited for ideological gain.

‘Fatal Foetal Abnormality’ •

Again we briefly state our opposition to this type of language and our preferred terminology of an unborn child with a profoundly life-limiting condition/disability.

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Babies born with these conditions can survive for a period of time. Babies born with anencephaly for instance are certainly life-limited but they can survive for a period of time. There are many local and international 1 cases of babies born with this condition who live for several days, weeks and even months . Let’s be very clear, contrary to some reports and comments, these babies are not already ‘dead in the womb’ otherwise they would be removed without recourse to abortion.

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The Department of Justice 2014 consultation suggested four options about how to define a ‘lethal foetal abnormality.’ It is worth returning to this for a moment in light of these amendments. The first three options were discounted by the Department itself and the fourth was proposed as their preferred choice: 1. The first option of listing specific lethal conditions (Sections 4.4 & 4.5) was discounted because ‘advice from medical professionals on this option makes it very clear that it would not be possible to list the conditions ...Such a list would also be unable to respond in a timely manner to medical advances’. This is proof of how difficult it is, even for medical professionals to know whether an unborn child in an individual case will live for a period of time or not. It also shows an inability to account for the range of severity found within a diagnosed condition.

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http://www.lifenews.com/2014/10/28/baby-angela-born-with-anencephaly-defies-the-odds-turns-7-months-old/

2. The second option was to use a specific measure of ‘sustainable life’ (sections 4.6 & 4.7). This would be ‘the foetus would not survive birth’ or the foetus would not survive for more than one week etc.’ The consultation itself accepted this would be ‘an arbitrary timeline’ which would not serve women well. The danger with this approach is the value judgement placed on a short life. We have already likened this principle to euthanasia and the impact this would have on the human dignity and lives of the most vulnerable sick and disabled born or unborn. Essentially, if a baby will not likely live beyond x, the protection of life is removed.

3. Option three was that there is no statutory definition of ‘lethal’ (sections 4.8 & 4.9). In an area of law where the medical profession are calling for clarity and practical guidance this option does not merit serious consideration. The option is also discounted by the Department because ‘this would not be an immediate solution and would take time to resolve.’ We recognise the time-bound nature of these decisions but would also warn against an immediate solution to matters of life and death. While re-stating that we do not consider abortion to be a solution in these cases, the lives and wellbeing of women and unborn children will not be served well by either vagary or rigidly formulaic laws.

4. The Department proposed option four as it’s preferred legal change (4.10 & 4.11 & 4.21). This option is to allow abortion where a ‘foetal condition has been assessed by medical practitioners as being incompatible with life.’ This option does not solve the problems raised by the other three options. It does not solve the issue of complexity around prognosis and life-span of the unborn child with some specific illnesses. It is still arbitrary in the sense that others have decided a life should be ended prematurely because of a profoundly life-limiting disability. The option remains vague and does not provide clarity for women, families or medical practitioners.

5. As a point of principle, we are also not convinced that medical practitioners alone should be making these interpretations of the criminal law. We do not support these amendments but if any of them were to become law we would strongly recommend two relevant consultants make the decision in addition to judicial agreement as a wiser safe-guard. This would not be an onerous requirement as these cases are thankfully rare and there is legal precedence in Northern Ireland in cases with medical/legal uncertainty around abortion (Re S.J.B, Re C.H., Re A.M.N.H.).

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Again while being very clear that we do not advocate abortion in these circumstances nor support a change in the law, the existing law would cover some of these instances already where a woman sees the prospect ‘of continuing to term too difficult to contemplate’ (section 4.7) on the grounds of a threat to her mental health being ‘real and serious and permanent or long term.’ (Bourne judgement).

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There are legal precedents which raise questions about a unique interpretation of the life and status of 2 the unborn child in Northern Ireland in these and other circumstances. The case of R v MacDonald considered the meaning of the words ‘capable of being born alive’ from section 25 of the Criminal Justice Act (NI) 1945. The ruling interpreted these words as meaning that the ‘foetus had a real chance of being born and existing as a live child, breathing through its own lungs, whether unaided or with the assistance of a ventilator and whether for a short time or a longer period.’ Secondly, there is the case of The Attorney General for Northern 3 Ireland and Siobhan Desmond v The Senior Coroner for Northern Ireland . This case establishes legal personhood ‘to include a foetus in utero then capable of being born alive.’ Applying these cases, surely many of these unborn children with profoundly life-limiting disabilities would be ‘capable of being born alive’ and are 4 entitled to the legal protection which comes with being a legal ‘person’. Additionally, in A, B and C v Ireland the Court stated that there is no right to an abortion, nor a consensus as to when life begins under the ECHR – there is a wide margin of appreciation given to member states. The European case of Oliver Brüstle v 5 Greenpeace e.V. was about patentability of science/products from human embryos. Part of the Judgement states, ‘human dignity is a principle which must be applied not only to an existing human person, to a child who has been born, but also to the human body from the first stage in its development, i.e. from fertilisation.’ We simply make the point that Northern Ireland can choose a different path. We would encourage a more lifeaffirming approach to the unborn and to human dignity as exists in our present law. There is an opportunity for Northern Ireland to choose to uphold both the life and dignity of women and their unborn children.

[1999] NI 150 [MOR9053] 4 [2010] ECHR 2032 5 2011 I-09821 3

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The fundamental opposition we have to these proposals is the value judgement made on the life of a human being. That because an unborn child has a certain condition, is very sick or has a profoundly life-limiting disability its life can be deliberately ended prematurely. It sets a precedent for the state to be party to the ending of human life in cases of profound disability and terminal illness. It devalues those other members of our community who are disabled or terminally ill.

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These proposed changes to the law would cross a Rubicon in Northern Ireland from indirect to direct abortion. At the moment there is a legal defence to abortion only on the grounds to save the life of the mother, interpreted through Bourne to include preventing real and serious, permanent or long term damage to her health.

This is indirect abortion. Abortions are not currently allowed where their sole function is to end the life of the unborn child. These amendments would signify a shift to direct abortion. The law would change from one which protects the life and health of the mother and her unborn children to one which allows abortion based on the disability or circumstances of conception of a particular child.

Sexual Crime

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Rape and sexual crimes are some of the most grave abuses of human rights and human dignity imaginable. We stand with women and those who have been abused. We commend the work of the Rowan Sexual Assault Referral Centre in Antrim and the care it provides to victims of sexual crime. We make the initial point that abortion is not a treatment for rape or sexual crime. It cannot undo the fact that the woman was pregnant nor undo the violation and abuse suffered. We propose that it actually creates another human victim.

Care and restoration begins with compassion, not another act of violence.

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It is important to note that the Department of Justice itself rejected the idea of changing the law to allow abortion in cases of sexual crime following their consultation in 2014.

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The Department of Justice accepted these matters are ‘complicated and complex’ (section 6.1 of 2014 consultation). There are many problems, not least around consent, age and relationship. How to define and categorise those crimes which would be affected by a change in the law. How to prove, or at least testify about a sexual crime in the requisite timescale. Where mental capacity to consent to sex is an issue, this raises the corresponding issue of capacity to consent to an abortion. These amendments do not adequately deal with these issues.

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The two questions the Department of Justice asked were; is there a need for the law to be changed, and if so how should it be changed? We do not believe there is a need for the law to be changed. Instead we would favour more work on the wider cultural issues around rape and sexual crime. Education and development with young men around sexual crime, human dignity, human rights and violence against women. There is a need for long-term planning to address the increase in pornography addiction and the doubling of recorded sexual crime between 2001 and 2014. There needs to be continued support for, and awareness of, the Rowan SARC and similar ventures to provide immediate care for assaulted women. Adoption and fostering should be promoted as life-affirming alternative choices to abortion in these circumstances.

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Many survivors who become pregnant through sexual crime do not choose abortion. Figures released 6 by the Rape Crisis Network Ireland in 2013 showed that in 90 cases of pregnancy through rape only 17 women and girls chose to have a termination. This is one study but the figures equate to just 15% of the total. This perhaps highlights the complexity of these cases and challenges any assumption that abortion is the default choice or ‘solution’.

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There is a need for redemption in these very difficult situations. Suffering and grief over time and through relationship can give birth to hope and new life. Horrendous acts of sexual crime and brutality can somehow result in restoration and even a new life through fostering and adoption. Ending the life of an unborn child, innocent of any crime, by a women, the victim of a horrendous crime, is not the best path to hope, justice and flourishing for individuals, their families and communities.

http://www.rcni.ie/rape-pregnancy-and-abortion-in-ireland-rcni-release-new-figures-today/

Conscientious objection •

We do not support a change in the law, but if the change were to occur there would need to be room for conscientious objection as proposed.

PRACTICAL ALTERNATIVES The proposed changes will not lead to a more life-affirming, compassionate, just and flourishing society. The assumption is that the criminal law in Northern Ireland requires change. Instead the Department of Justice should seek to work with the DHSSPSNI and others to create a culture of better practical help for women and their families experiencing a pregnancy crisis.

We acknowledge that some people use their freedom to seek abortions or euthanasia outside our legal jurisdiction. Every citizen’s choices are constrained by personal finance and the law when it comes to accessing certain ‘services’ not provided by the State. Few are arguing that the UK should legalise assisted suicide or drugs simply because they are legally available in other parts of Europe. If devolution is to have any real meaning, Northern Ireland must be allowed to make it’s own decisions and at times to differ from other parts of the UK. Abortion is allowed in Northern Ireland where there is medical necessity. If people want to, and can afford to, travel to other jurisdictions they can do so but the focus of local health care should be to provide compassionate practical alternatives to abortion within the parameters of existing Northern Irish law.

Our unique law affirms life, health and wellbeing and our pregnancy crisis care should provide choices to women, centred around these very same values and ethos. This is not second-class care and in fact women deserve better than abortion. Our healthcare providers must be pro-active and have services in place so that women and families in the midst of a pregnancy crisis have real choices and care pathways immediately available which are centred on their wellbeing and that of their child: •

A personal pathway of care should be discussed and offered when a pregnancy crisis arises. This would gather existing services together including interdisciplinary medical care, financial advice, social services, Rowan SARC in the cases of sexual crime, chaplaincy services and charity NGO’s. The idea is to provide wrap around care to women, their families and unborn children to help support them and navigate through their pregnancy crisis.

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A Perinatal Hospice pathway should be offered under the existing law when a severe life-limiting illness or disability is identified. This would offer the woman and her family medical, practical, emotional and spiritual support to continue the pregnancy until the natural end of the life of the baby, whether in the womb or post birth.

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World class provision of relationships and sex education, advice and contraceptive services.

Not all pregnancy crisis are preventable, some are tragic natural occurrences or abuses of women.

However some arise due to reasons which may have been preventable. Concerted focus on reducing preventable numbers of unwanted pregnancies while cultivating greater respect for human life and dignity is of upmost importance.

For further information please contact: David Smyth Public Policy Officer Email: d.smyth@eauk.org Tel: 028 9073 9079 1st Floor Ravenhill House 105 Ravenhill Road, Belfast, BT6 8DR