22 March 2021
Abortion reform in Northern Ireland has had a fraught history, to say the least. Matters appeared to finally come to a head when in 2019, the UK Parliament enacted the Northern Ireland (Executive Formation etc.) Act 2019 (2019 Act), which created a duty on the Secretary of State to implement abortion reform by following the report of the Committee on the Elimination of Discrimination of Women (CtteEDAW). Nearly two years and two statutory instruments later, Stormont finds itself mired in fresh controversy as long-term abortion facilities in Northern Ireland have yet to be commissioned. So the obvious question arises: what happened?
The route to legal change
At the outset, it should be remembered that when abortion reform was enacted in Great Britain in 1967, it was not extended to Northern Ireland – which was, at that time, the only devolved administration in the UK (with healthcare firmly devolved to Stormont). Nor was abortion reform extended to Northern Ireland when Direct Rule began in 1972. Until 2019, abortions were mostly illegal under sections 58 and 59 of the Offences Against the Person Act 1861 and section 25(1) of the Criminal Justice Act (Northern Ireland) 1945. The only exception to this sweeping regime was the so-called “Bourne exception”, derived from the summing up of evidence in the criminal case off in which Mr Justice Macnaghten had said that an abortion may be lawfully carried out “in good faith for the purpose only of preserving the life of the mother”.
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