Advocating Abortion Rights in Northern Ireland

DOI10.1177/0964663916668249
Date01 December 2016
Published date01 December 2016
Subject MatterArticles
SLS668249 716..740
Article
Social & Legal Studies
2016, Vol. 25(6) 716–740
Advocating Abortion
ª The Author(s) 2016
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DOI: 10.1177/0964663916668249
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Global Tensions
Catherine O’Rourke
Ulster University, UK
Abstract
It is frequently claimed that the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW) is more significant for the cultural, rather than
legal, work that it does in reframing locally contested gender issues as the subject of
international human rights. While this argument is well developed in respect of violence
against women, CEDAW’s cultural traction is less clear in respect of women’s right to
access safe and legal abortion. This article examines the request made jointly by Alliance
for Choice, the Family Planning Association Northern Ireland and the Northern Ireland
Women’s European Platform to the CEDAW Committee to request an inquiry under
the CEDAW Optional Protocol into access to abortion in the jurisdiction. The study
found that the CEDAW framework was useful in underpinning alliances between diverse
pro-choice organizations but less effective in securing the support of ‘mainstream’
human rights organizations in the jurisdiction. The article argues that the local cultural
possibilities of CEDAW must be understood as embedded within both the broader
structural gendered limitations of international human rights law and persistent
regressive gendered sub-themes within mainstream human rights advocacy.
Keywords
Abortion laws, CEDAW, international human rights law, Northern Ireland, Optional
Protocol inquiry, transnational advocacy
Corresponding author:
Catherine O’Rourke, Ulster University, BT37 0QB, UK.
Email: cf.orourke@ulster.ac.uk

O’Rourke
717
Introduction
Feminist engagement with legal reform and strategic litigation typically acknowl-
edges the social and cultural limitations of such work, in privileging legal expertise
and legal narrative over the expertise and experience of women (Roa and Klugman,
2014; see especially Smart, 1989; see also West, 2009). The Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW), by contrast,
arguably faces these limitations in reverse; whereas the Convention is plagued by
reservations and a lack of sanctions for the non-compliance of state parties (Cook,
1990), it is distinguished for its cultural work in affirming women’s rights and
equality in local (Merry, 2006) and global (Joachim, 2007) settings. This analysis
would suggest that the best hope for securing progressive cultural and legal change
in domestic settings with restrictive abortion regimes is to utilize both domestic and
international approaches.
The article considers the interplay of domestic legal and international human
rights strategies in pro-choice advocacy in Northern Ireland. The article begins by
discussing the strategic litigation pursued by the Family Planning Association
Northern Ireland (FPANI) through the Northern Irish courts since 2002 to compel
the Department of Health, Social Services and Public Safety (hereinafter the Depart-
ment of Health) to bring forward guidance for medical professionals on the lawful
provision of abortion in the jurisdiction. While the litigation has been successful in
formal legal terms, embedded cultural and political resistance to reform has eroded
ostensible legal gains. The article then turns to the initiative by Alliance for Choice,
the FPANI and the Northern Ireland Women’s European Platform (NIWEP) in 2010
requesting the CEDAW Committee to conduct an inquiry into access to abortion in
the jurisdiction under the CEDAW Optional Protocol. Unlike the FPANI’s strategic
litigation, the CEDAW inquiry request has pursued an avowedly rights-based
approach. The positive cultural impact of the inquiry request is clearest in under-
pinning valuable new alliances between previously disparate pro-choice organiza-
tions, but the article also critically reflects on the evident cultural limitations of the
CEDAW initiative, in particular, in failing to secure the support of mainstream
human rights organizations in Northern Ireland. In marked contrast to the CEDAW
inquiry request, the 2013 Draft Guidance issued by the Department of Health for
medical professionals on the lawful provision of abortion in the jurisdiction moti-
vated robust opposition from human rights non-governmental organizations (NGOs)
operating in Northern Ireland, who were alarmed by the manifest compliance issues
with civil and political rights guaranteed under the European Convention on Human
Rights (ECHR) presented by Draft Guidance. The article therefore argues that the
local cultural possibilities of CEDAW must be understood as embedded within the
broader structural gendered limitations of international human rights law and per-
sistent regressive gendered sub-themes within mainstream human rights advocacy.
Further, the utilization of CEDAW to support domestic litigation strategies may
offer a tentative coming together of advocacy for both cultural and legal changes,
in Northern Ireland and beyond.

718
Social & Legal Studies 25(6)
Abortion in Northern Ireland: Law, Culture and Strategy
Obstacles to abortion law reform in Northern Ireland are often framed in terms of ‘the
cultural problem’ (Fegan and Rebouche, 2003). Invocations of Northern Ireland’s ‘dis-
tinctive cultural values’ (Smyth, 2006), erroneously defined as cross-community oppo-
sition to abortion, are never distant from anti-choice demands to maintain the status quo.
Smyth (2006), in particular, has unpicked the strategy of anti-choice groups in Northern
Ireland to portray opposition to abortion as a ‘cultural norm’ that unites both sides of the
ethnic divide in an otherwise deeply divided society and that distinguishes Northern
Ireland from the rest of the United Kingdom. Political and legal strategies of anti-choice
groups pursue and maintain official recognition for these claimed cultural norms. The
efficacy of the strategy is vindicated by the aversion of the Northern Ireland Legislative
Assembly (hereinafter the Assembly) to legal reform on abortion and the continued
unwillingness of the UK government to extend the 1967 Abortion Act to Northern
Ireland, motivated by claimed submissiveness to the will of the people of Northern
Ireland. The extent to which deference to Northern Ireland’s perceived distinctive cul-
tural values shapes local and broader debates on the jurisdiction’s abortion law becomes
evident in the tone and language of both the Assembly and UK government. Throughout
the Assembly’s first debate on abortion, in 2002, the portrayal of opposition to abortion
as an issue uniting ‘Protestant, Catholic and dissenter’ was a recurring motif. More
recent Assembly debates have attempted to pivot also to concern for the ‘mother’s
welfare’, but the narrative of unified cross-community opposition to abortion remains
firm. Moreover, the UK government’s response to repeated examination from the
CEDAW Committee shows little divergence from its position in 1985:
Since the introduction of direct rule in 1972 the view has been taken not to introduce a
measure to change the abortion laws in Northern Ireland unless it is likely to command
broad support among the people of the Province. Such support does not exist at present.
(Minister Nicolas Scott, reproduced in Furedi, 1995: 97)
The framing of abortion in Northern Ireland as primarily a cultural matter, seconda-
rily a legal matter, but rarely a matter of women’s rights, is not only a construction of
anti-choice groups. Scholarship on abortion in Northern Ireland is not bountiful. Cer-
tainly, the topic has attracted less scholarly analysis than the legal and social contexts of
abortion in the Republic of Ireland (see, e.g. Mullally, 2005; Smyth, 1992). The relative
scarcity of academic analysis is, arguably at least, attributable to the prevailing concern
of gender analysis in the jurisdiction with the gendered implications of the conflict, in
particular, on women’s activism (see generally, Roulston and Davies, 2000). Women’s
pro-choice activity features at the margins of this broader literature on women’s acti-
vism, positioning pro-choice advocacy either as an issue of pragmatic cross-community
women’s activity when broader feminist alliances proved unworkable (Roulston, 1989;
Ward 1986) or as an issue deliberately silenced in the name of avoiding further differ-
ences among women (see discussion of the approaches of the Women’s Support Net-
work, Cockburn, 1998, and discussion of the Northern Ireland Women’s Coalition,
Fegan and Rebouche, 2003). Fegan and Rebouche (2003) link the dominant construction

O’Rourke
719
of women and women’s activism in Northern Ireland as peacemakers and interethnic
reconcilers with the relative invisibility of narratives of women’s equality and equal
rights in the jurisdiction:
When women are considered first and foremost in relation to others their own individual
needs and future potential are in danger of being neglected by wider society. (p. 226)
Specifically doctrinal analysis of abortion law in Northern Ireland is primarily con-
cerned with the lack of legal clarity and the consequent need for reform (Capper, 2003;
Hewson, 2004; McGleenan, 1994, 2000). Northern Ireland’s restrictive abortion regime
has its origins in the 1861 Offences against the Person Act, which criminalizes the
unlawful procurement of a miscarriage (sections 58 and 59). The partition of Ireland
in 1920 is...

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