June 2021 Fact Sheet: Human Rights Commission Legal Action on Lack of Abortion Services in NI

Human Rights Commission Legal Action on Lack of Abortion Services in NI

What is the current law in Northern Ireland on Abortion?

Since 31 March 2020, terminations have been legalised in Northern Ireland (NI) in a number of circumstances, including under any circumstances by a registered doctor, nurse or midwife up to 12 weeks and where there is a risk to physical or mental health in the opinion of two registered medical professionals up to 24 weeks.

Terminations with no gestational limit are also now legal in NI where there is an immediate necessity to save a life or to prevent a grave permanent injury to the physical or mental health of a pregnant woman, or in cases of severe fetal impairment or fatal fetal abnormality.

The new law was introduced in the Executive Formation Act (NI) 2019 requiring the Secretary of State for Northern Ireland to implement in full the recommendations of the UN Committee on the Elimination of Discrimination against Women inquiry (CEDAW) into abortion in NI, which held that the (then) law created grave and serious violations of human rights.

How is the current law being implemented in Northern Ireland?

The Department of Health has not commissioned or funded termination services for the purposes of implementing the Abortion (Northern Ireland) (No2) Regulations across NI.
The Department of Health has failed to issue any guidance to health and social care trusts on the provision of abortion services including when and in what circumstances medical staff may exercise their freedom of conscience when delivering a service.

Papers were submitted to the NI Executive by the Department of Health in April and May 2020 seeking to commission a service. We understand the NI Executive has not yet discussed, and therefore made no decision on the paper submitted in May 2020.

Health and social care trusts are offering termination within existing services and only where resources allow. This was done as a short-term measure by transferring staff from other sexual and reproductive services, which were held in abeyance or reduced as a result of Covid-19 restrictions.

Several months ago, the five health and social care trusts produced an application seeking funding to meet the new legislative requirements for abortion services but this was not considered by the Health and Social Care Board.

From 5 October 2020, the Northern Health and Social Care Trust had to transfer staff back into other sexual and reproductive health care services and therefore ceased to take any new referrals for termination services and the remaining four trusts are not providing abortions for between 10 and 12 weeks due to lack of resources. Other trusts have not got the resources to pick up this work. On 4 January 2021 it restored the service.

From 5 January 2021, the South East Health and Social Care Trust ceased to provide a service as the only clinician providing the service went on maternity leave. The service was eventually restored in early February 2021.

From 23 April 2021, the Western Health and Social Care Trust suspended its early medical abortion service until further notice.

Termination services for medical reasons up to 24 weeks or without a gestational time limit, in line with the Abortion Regulations, are mainly performed by the Belfast Health and Social Care Trust.

In March 2021 the Secretary of State for Northern Ireland brought forward regulations to take powers to issue directions to First and deputy First ministers, Health minister, Health and Social Care Board and the Public Health Agency to take action to implement the recommendations of the CEDAW report.

What is the Northern Ireland Human Rights Commission’s position?

Following pre-action correspondence, the Northern Ireland Human Rights Commission (Commission) decided on 30 November 2020 to initiate legal action against the Secretary of State, NI Executive and Department of Health for Northern Ireland for the failure to commission and fund abortion services in NI.

The Commission is deeply concerned at the lack of commissioned and funded abortion services in Northern Ireland leading to a vacuum for many women and girls seeking such services. Women and girls seeking an abortion then have to travel to England, elsewhere in Ireland and pay for a service or to use unregulated services.

The Commission believes that the failure of the NI Executive and Department to agree to fund and commission these services breaches the European Convention on Human Rights, in particular, Article 8, the right to private and family life which includes the right of a woman to personal and bodily autonomy.

The Secretary of State for Northern Ireland has a statutory requirement under the NI (Executive Formation etc) Act 2019 to ensure that the recommendations of the Committee on the Elimination of Discrimination Against Women committee are implemented, namely that women have access to free and safe abortions in NI.

The Commission expects the NI Executive and the Department to commission and fund the abortion services envisaged in the Abortion (Northern Ireland) (No2) Regulations 2020; and expects the Secretary of State to take such legislative action as is necessary to ensure this occurs.

Who are the parties in the case?

This action is being brought against the Department of Health, Secretary of State for Northern Ireland and the NI Executive. Amnesty International and Informing Choices NI have provided a joint intervention in the case. The Health and Social Care Board is an interested party.

When will the case be decided?

The case was heard on 26, 27 and 28 May 2021 and judgment has been reserved.

Have there been any developments since the case was heard?

The Society for the Protection of Unborn Children (SPUC) Pro Life Ltd was granted leave to bring a legal challenge against the Secretary of State, arguing that the Abortion (NI) Regulations 2021 are invalid and unlawful, and that they breach EU law and Article 2(1) of the Ireland/ Northern Ireland Protocol. The Commission was given leave to intervene in this case, together with the Equality Commission of Northern Ireland and another individual. The case is due to be heard in October 2021.

Informing Choices NI (ICNI) published a report on 22 June 2021 entitled “Beyond decriminalisation: pregnancy choices and abortion care in Northern Ireland”. It reports on aspects of the central access point provided by ICNI and the early medical abortion services in NI – this includes their design and implementation; the provision of counselling support; the provision of the service from a healthcare professionals’ perspective; accessing the service from a woman’s perspective; the impact of protestors; the availability of contraception; the lack of a public health information campaign; and recommendations for future commissioning.

The report states that if funding is not made available for ICNI to continue providing the central access point service, it will cease from 1 October 2021.

What are the key concerns?

The lack of a Department supported approach has created a disparity in accessing termination services within NI. The regulations in Westminster are not being fully implemented with services effectively confined to an Early Medical Abortion service which has been suspended for periods in a number of health and social care trusts.

It has also meant that many women, depending on their circumstances and where they live in NI, continue to have to travel to other parts of the UK and Ireland or to use unregulated services.

There are many circumstances, including travel restrictions and threat to health created by Covid-19 which rule out travelling for women. The applicant in this case is one such example, having become pregnant during a period when a local trust had suspended services, she was unable to travel and had to rely on obtaining pills over the internet.

What human rights are engaged?

The decision of women and girls to make choices about continuing their pregnancy falls within the scope of Article 8 of the European Convention on Human Rights, which protects the right to private and family life. Article 8 states:

• Everyone has the right to respect for his private and family life, his home and his correspondence.

• There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others

The Commission is arguing that the failure to commission and fund service giving effect to the Abortion (NI)(No.2) Regulations 2020 has resulted in women and girls not being able to access lawful abortions, a disproportionate interference with their rights under Article 8 of the European Convention on Human Rights.

What is the Commission doing to monitor implementation of Abortion Services in NI?

The Commission has committed to: monitor the provision of reproductive healthcare services and education in NI, following the introduction of a new legal framework for abortion, and engage with the Department of Health in accordance with the Northern Ireland (Executive Formation etc) Act 2019.

The Commission has undertaken the necessary discussions with key stakeholders to inform its monitoring project. In terms of the healthcare aspect, this has included the Department of Health, Northern Ireland Office clinicians and managers providing the service, the regulator, Public Health Agency, Royal Colleges among others and conducted a roundtable with civil society organisations that both support and oppose the new law.

The Commission published this report in May 2021.