‘Too Much, too Indigestible, too Fast’? The Decades of Struggle for Abortion Law Reform in Northern Ireland
| Author | Clare Parker,Gayle Davis,Jane O'Neill,Sally Sheldon |
| Date | 01 July 2020 |
| Published date | 01 July 2020 |
| DOI | http://doi.org/10.1111/1468-2230.12521 |
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Modern Law Review
DOI: 10.1111/1468-2230.12521
‘Too Much, too Indigestible, too Fast’? The Decades of
Struggle for Abortion Law Reform in Northern Ireland
Sally Sheldon, Jane O’Neill, Clare Parker and Gayle Davis∗
In July 2019, the UK Parliament voted by an overwhelming majority for fundamental reform
of Northern Ireland’s archaic abortion laws. Regulations implementing the reform came into
effect on 25 March 2020. Drawing on extensive archival resources and a small number of
interviews, we locate this extraordinary political moment in a broader historical context. We
explore the factors that blocked the possibility of reform in either Westminster or Stormont for
over fivedecades and consider what it was that had changed in 2019 to render it possible. While
the measure passed in Westminster represents a radical rupture with the past, we suggest that
it was anything other than sudden, rather representing the culmination of decades of sustained
campaigning. We conclude by br iefly discussing what this change is likely to mean for the
future.
INTRODUCTION
In July 2019, the UK Parliament voted by an overwhelming majority for
fundamental reform of Northern Ireland’s abortion law. The existing law,which
relied on statutory criminal prohibitions dating from the mid-Victorian era, had
long been amongst the most restrictive in Europe. Now, it is set to become,
in certain respects at least, amongst the most liberal and, moreover, more
permissive than that in force elsewhere in the UK. The vote represented
a dramatic rupture with the past, with successive UK gover nments having
long steered a careful course of studied inaction on the issue. Indeed, Karen
Bradley (Con)’s very recent statement – that any such reform must be ‘debated
and decided by the people of Northern Ireland and their locally elected, and
therefore accountable, politicians’ – could have been made by any one of her
predecessors in the Northern Ireland Office over the previous five decades.1
However, while public opinion in Northern Ireland had moved firmly in favour
of reform over that period, discussions at Stormont had proved tortuous and
ultimately inconclusive.
∗Sally Sheldon is Professor of Law, Kent Law School, University of Kent, University of Technology,
Sydney; Jane O’Neill is a PostdoctoralFellow,School of Histor y, Classics and Archaeology,University
of Edinburgh; Clare Parker is a researcher, School of Humanities, University of Adelaide; and Gayle
Davis is Senior Lecturer, School of History, Classics and Archaeology, University of Edinburgh.The
authors are grateful to Goretti Horgan, Bill Rolston, and two anonymous reviewers for the Moder n
Law Review for their constructive comments and to the Arts and Humanities Research Council for
funding our research (AH/N00213X/1). Unless otherwise stated, all websites were last accessed on
14 November 2019.
1 HC Deb vol 642 col 220 5 June 2018.
C2020The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2020) 83(4) MLR 761–796
This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and
reproduction in any medium, providedthe orig inal workis properly cited.
The Struggle for Abortion Law Reform in Norther n Ireland
Drawing on archival resources and a small number of interviews with those
active in campaigns for reform, we aim to locate this extraordinary political
moment in a broader historical context extending back five decades.2We
explore the factors that blocked the possibility of even limited change before
now, beginning at Westminster (which retained legislative responsibility for
criminal justice in Northern Ireland until 2010), then moving to Stormont
(which debated abortion on multiple occasions before the most recent collapse
of the Assembly between January 2017 and Januar y 2020), and finally returning
to Westminster. We then consider what had changed in 2019 to render this
reform possible and conclude by briefly discussing what it means for the future.
NORTHERN IRELAND’S ABORTION LAW
Until the late 1960s, England, Wales and Nor thern Ireland were subject to
broadly the same abortion laws. Abortion was an offence under the Offences
Against the Person Act 1861, which punished ‘unlawful procurement of mis-
carriage’ with life impr isonment.3A separate and overlapping offence applied
after viability, prohibiting the intentional destruction of a child ‘capable of
being born alive’.4While the 1861 Act contained no explicit defence for its
abortion offences, the case of RvBourne (Bourne) in 1938 carved out a thera-
peutic exception, providing that no offence was committed when abortion was
performed to ‘preserve the life of the mother’. This was held to include cases
where a termination was deemed necessary to prevent the pregnant woman
from becoming a ‘mental or physical wreck’.5
In 1967, the Abortion Act was passed, providing a statutory framework
for the provision of legal abortion in England, Wales and Scotland. While
remaining a criminal offence where the Act’s terms were not met, abortion
would henceforth be lawful where two doctors certified in good faith that it
was appropriate on the basis of one of four broad grounds laid down in the Act,
and where performed by a doctor within NHS or other approved premises.
Most abortions would be authorised under the first ground: that continuing
with a pregnancy would pose greater risk to a woman’s mental or physical
health than would termination.6While this provision was initially subject to
widely diverging interpretations by doctors, a liberal interpretation came to
2 For a list of those interviewed and the archives consulted in the course of this research, see
https://research.kent.ac.uk/abortion-act/. For the purposes of this paper, we rely, in particular,
on resources held in the Public Records Office of Northern Ireland (PRONI). All interviews
were conducted by O’Neill.
3 Offences Against the Person Act 1861, s 58, with s 59 creating the lesser offence of supplying
or procuring the means of procuring a miscarriage.
4 Criminal Justice Act 1945 (for Northern Ireland); Infant Life Preservation Act 1929 (for England
and Wales). Under the law of Scotland, abortion was punishable at common law.
5RvBourne [1938] 3 All ER 615.
6 98 per cent of abortions are certified on this ground: Department of Health and Social Care,
Abortion Statistics, England and Wales: 2018 (London: HMSO, 2019).
762 C2020The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2020) 83(4) MLR 761–796
Sally Sheldon et al.
dominate and, in practice, NHS-funded abortion is today readily available on
request in England, Wales and Scotland within the earlier stages of pregnancy.7
In Northern Ireland, the position was very different, with the statutory po-
sition remaining that which had pertained before 1967. Moreover, Bourne wa s
subject to a narrow interpretation within the Northern Irish cour ts: abortion
would be lawful only where any adverse effects on a woman’s health would
be ‘real and serious’, and ‘permanent or long term’.8This test came to be
understood increasingly restrictively within clinical practice over time. While
it is likely that many thousands of legal abortions were performed in England
and Wales on the basis of Bourne before 1967, and several hundred in Northern
Ireland each year during the 1970s and 1980s, there were just 12 in 2017/18.9
Why was the Abortion Act not extended to Northern Ireland? In 1967, this
question scarcely needed to be asked: it was standard practice to exclude the
region when legislating on issues of sexual morality.10 The UK Government
believed that Northern Ireland’s inclusion in liberalising abor tion law reform
‘would provoke religious and political controversy of a most undesirable kind’
that might militate against efforts ‘to promote a better relationship between the
communities in the Province.’11 As a Scottish MP,the Act’s sponsor, David (now
Lord) Steel (Lib), was respectful of the significance of devolution.12 Moreover,
with a majority for his Bill far from assured, its supporters feared mobilising the
certain opposition of Northern Ir ish MPs. The veteran Abortion Law Reform
Association campaigner, Diane Munday, who had lobbied for the introduction
of the 1967 Act, told us: it was ‘appalling to exclude Northern Irish women.
7 On the initially diverging interpretations of the Act, see I.M. Ingram, ‘Abortion Games: An
Inquiry into the Working of the Act’ (1971) 2 Lancet 969; J. O’Neill, ‘“Abortion Games”: the
Negotiation of Ter mination Decisions in Post-1967Br itain’ (2019) 104 History 169; G.Davis, J.
O’Neill, C. Parker and S.Sheldon, ‘All Aboard the “Abortion Express”: Geographic Variability,
Domestic Travel, and the 1967 Br itish Abortion Act, in C. Sethna and G. Davis (eds), Abortion
Across Borders: Transnational Travel and Access to Abortion Services (Baltimore, MD: Johns Hopkins
University Press, 2019) On the current liberal interpretation, see S. Sheldon, ‘British Abortion
Law: Speaking from the Past to Govern the Future’ (2016) 79 MLR 283.
8 These cases also confirmed that Bourne (which as a jury direction in a Crown Court trial was
technically not binding in Northern Ireland) applied in the jurisdiction. See Western Health and
Social Services Board vCMB and the Official Solicitor (unreported 1995); Down Lisburn Health and
Social Services Board vCH and LAH (unreported 1995); In the Matter of an Application by The
Family Planning Association of Northern Ireland for Judicial Review [2003] NIQB 48.
9 Official statistics were not collected before the Abortion Act, but see Committee on the Workings of
the Abortion Act (the Lane Committee) Cmnd 5579 (1974) vol 1 [35]; and P. Ferris, The Nameless:
Abortion in Britain Today (London: Pelican, 1966) for discussion of the large numbers of ‘West
End Legal’ abortions. For an explanation of the declining numbers of abortions reported in
Northern Ireland figures, see text to notes 146-149 below.
10 See generally V. Bogdanor, Devolution in the United Kingdom (Oxford: OUP, 2001) 79. Bill
Rolston, member of the Northern Irish Abortion Law Refor m Association (NIALRA), told
us that the ‘British government’s notion was that they defer red to the devolved government on
controversial issues. In reality, the controversial issues only related to sex.’ Interview (29 April
2017).
11 Letter from E.M. Chadwell (Home Office) to R.A. Devereux Esq (Ministry of Defence) (8
December 1966). PRONI HA/8/1994.
12 Sir David Steel, Minutes of a meeting to discuss the abortion law in NI, organised by the Birth
Control Campaign in the House of Commons (23 March 1994). PRONI HSS/13/52/46. See
further J. Thomson, Abortion Law and Political Institutions: Explaining Policy Resistance (Cham:
Palgrave Macmillan, 2019) 86-87.
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(2020) 83(4) MLR 761–796 763
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