Abortion in Northern Ireland: recent changes to the legal framework

The purpose of this briefing is to provide an overview of how the law on abortion in Northern Ireland has changed in recent years. It does not comment on, or add to, the debate on the ethics of abortion.

Abortion is a medical intervention through which a pregnancy is ended. It is sometimes referred to as a ‘termination of a pregnancy’ A medical abortion involves taking 2 different medicines to end the pregnancy, usually 1 or 2 days apart, while a surgical abortion involves an operation to remove the pregnancy from the womb. There were 63 ‘terminations of pregnancy’ in hospitals in Northern Ireland in 2020-21 while 371 women travelled to England from Northern Ireland in 2020 for an abortion procedure under a scheme funded by the UK Government.

Legislation in 2019

Changes to the law on abortion in Northern Ireland were introduced by the UK Government through Section 9 of the Northern Ireland (Executive Formation etc) Act 2019. The Act set out that Section 9 would come into force on 22 October 2019 if an Executive was not established by 21 October 2019. Since the Northern Ireland Executive was not in place by that date, the following changes to abortion law in Northern Ireland were made on 22 October 2019:

• sections 58 and 59 of the Offences Against the Person Act 1861 in Northern Ireland (attempts to procure abortion) were immediately repealed;
• a moratorium on abortion-related criminal prosecutions came into effect;
• a duty was placed on the UK Government to introduce, by regulations, a new legal framework for abortion in Northern Ireland which ensured that the “recommendations in paragraphs 85 and 86 of the CEDAW report are implemented in respect of Northern Ireland” by 31 March 2020. The CEDAW report is the “Report of the Inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women”.

A new legal framework

A new legal framework for abortion services in Northern Ireland was introduced, by regulation, by the UK Government on 25 March 2020 following a 6 week consultation. The Abortion (Northern Ireland) Regulations 2020 allow access to abortions up to 12 weeks gestation (11 weeks + 6 days), without conditionality, to be certified by one medical professional that the pregnancy has not exceeded its twelfth week. Abortions beyond 12 weeks gestation are lawful in specified instances, including when severe fetal impairment and fatal fetal abnormalities are detected.

The Regulations were subsequently re-made as the Abortion (Northern Ireland) (No. 2) Regulations 2020 on 12 May 2020, correcting drafting errors identified by the Joint Committee on Statutory Instruments. The Regulations had to be approved by both Houses, within 28 days of being laid, to remain in force. The Lords approved the Regulations on 15 June 2020, with the Commons subsequently approving the Regulations on 17 June 2020.

A debate on the Regulations was held on 2 June 2020 in the Northern Ireland Assembly. The motion, tabled by the DUP MLA Joanne Bunting, stated that the Assembly rejected ”the imposition of abortion legislation that extends to all non-fatal disabilities, including Down’s syndrome”. The motion was carried (Ayes 46, Noes 40), though the vote was non-binding and does not alter the Regulations.

Commissioning of abortion services

Concerns have been repeatedly raised in Westminster, and beyond, that full commissioning of abortion services in Northern Ireland has not taken place. The Westminster Government has consistently responded that responsibility for commissioning services rests with the Northern Ireland Health Minister and associated Northern Ireland Departments. The Northern Ireland Health Minister has stated, however, that the 2020 regulations do not compel the NI Executive / Health and Social Care Board to provide abortion services.

Early in 2021, Northern Ireland Human Rights Commission (NIHRC) announced that it was taking legal action against the Secretary of State for Northern Ireland, on the grounds that he had failed to ensure that women are provided with abortion and post abortion care in public health facilities in Northern Ireland. In the same claim, the NIHRC also challenged that the Northern Ireland Executive Committee and NI Minister of Health had failed to agree to commission and fund abortion and post abortion care in Northern Ireland.

A judicial review, brought by the NIHRC, was heard at Belfast High Court in May 2021. Handing down the court’s decision in October 2021, Mr Justice Colton said that the Northern Ireland Secretary had failed to comply with his duties, under section 9 of the Northern Ireland (Executive Formation etc) Act 2019, to “expeditiously” provide women with access to high quality abortion and post abortion care in all public health facilities in Northern Ireland. The NIHRC’s claim for judicial review against the Minister of Health and the Northern Ireland Executive Committee was dismissed by Mr Justice Colton.

In March 2021, the UK Government laid the Abortion (Northern Ireland) Regulations 2021 to address the gaps in commissioning abortion services in Northern Ireland. The new regulations give the Secretary of State a power to “direct Northern Ireland Ministers and, departments or relevant agencies to implement all of the recommendations in paragraphs 85 and 86 of the CEDAW report, consistent with the conditions set out in the Abortion (Northern Ireland) (No.2) Regulations 2020”. The 2021 Regulations were approved by both Houses of Parliament at the end of April 2021.

In July 2021, the Secretary of State for Northern Ireland issued a direction to the Department of Health, the Minister for Health, the Health and Social Care Board, and to the First and Deputy First Minister, to “commission and make abortion services available in Northern Ireland as soon as possible, and no later than 31 March 2022”. A week before the deadline, the Northern Ireland Secretary stated that it was “increasingly clear” that the Northern Ireland Department of Health was not going to ensure abortion and post abortion care was available in Northern Ireland by the end of March. He added that he was left with “no choice but to prepare work on further Regulations to ensure services are commissioned […] as soon as is reasonably practicable” following the Northern Ireland Assembly election in May 2022.

The 2021 Regulations and Directions were subject to a judicial review, brought by the Society for the Protection of Unborn Children (SPUC). The case was heard at Belfast High Court in early October 2021. On 8 February 2022, Mr Justice Colton found both the 2021 Regulations and the 2021 Directions to be lawful and dismissed the challenge brought by the SPUC.

Legislation in the Northern Ireland Assembly

Separately, a “non-executive bill” was introduced in the Northern Ireland Assembly in February 2021 on abortion in instances of severe fetal impairment. The Severe Fetal Impairment Abortion (Amendment) Bill (‘the SFIAA Bill’) seeks to remove the grounds for abortion in cases of severe fetal impairment by amending the Abortion (Northern Ireland) (No.2) Regulations 2020. At its Consideration Stage in December 2021, Members voted to reject the principles of the Bill (Ayes 43, Noes 45), with the BBC subsequently reporting that the Bill had “effectively fallen”.