8th amendment repealed

Thirty-five years ago, a majority of 67 per cent of citizens in the Republic voted to amend the Constitution by inserting a subsection – Article 40.3.3 – to recognise the equal right to life of the mother and the unborn. In May, the public voted decisively to remove this constitutional ban on abortion. Now, a renewed spotlight is shining on the legislative position in Northern Ireland.

Attention in the South has turned to the legislative process and opposition leaders have urged the Government to progress without delay. While the full heads of a Bill are expected to be published before the Oireachtas’ summer recess, it is anticipated that a new legal framework for abortion will not come before the Dáil and the Seanad until the autumn. The core components of the Bill are expected to closely mirror the draft heads previously published by the Health Minister Simon Harris.

Caught in their tide of optimism after a resounding victory, the pro-choice groups across the island are now turning their attentions to the current and highly restrictive legislative framework for abortion in Northern Ireland. Indeed, at the party’s recent Ard Fheis, Sinn Féin members voted conclusively to support an Ard Chomhairle motion stating: “abortion without specific indication should be available through a GP led service in a clinical context as determined by law and licensing practice for a limited gestational period”.

Under sections 58 and 59 of the Offences Against the Person Act, 1861 and Section 25 of the Criminal Justice Act (Northern Ireland), 1945, women are obligated to carry a pregnancy to term except in the instance where there is a risk to life or of serious long-term injury to physical or mental health.

A failed Supreme Court appeal brought by the Northern Ireland Human Rights Commission faltered because the organisation was deemed to lack the standing required to challenge the incompatibility of Northern Ireland’s legislation with articles 3 and 4 of the European Convention on Human Rights. Rather, the Supreme Court judges indicated that a case brought by a pregnant victim of rape, incest or fatal foetal abnormality was required in order for a declaration of incompatibility to be issued.

However, a majority of five to two of the Supreme Court judges indicated: “The law of Northern Ireland on abortion is incompatible with article 8 of the Convention in relation to fatal foetal abnormality” and by a majority of four to three that it is also “incompatible with that article in cases of rape and incest.” While this is not legally binding, it was suggested that, “it must nevertheless be worthy of close consideration”.

The ensuing debate occurs against the backdrop of UK Department of Health figures which indicate that over 919 women from Northern Ireland travelled to England for an abortion in 2017. This figure constitutes 19 per cent of the non-residents who had an abortion in England and Wales. As of 2017, women from Northern Ireland have had the right to access free abortion services in England, with the cost being met by the Government Equalities Office with additional funding provided by HM Treasury.

British Prime Minister Theresa May reiterated her position that a change to the legislation in Northern Ireland should be implemented by the devolved institutions. Speaking after the Supreme Court ruling, May stated: “I believe that a woman should be able to access safe, legal abortion… My preferred option is for it to be dealt with and addressed by those people who are elected politicians in, and elected as accountable politicians in, Northern Ireland. We want to see the devolved government and the Assembly back up and running and we’ll continue to work to ensure that that’s the case.”

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