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Women must be allowed choice to have an abortion

By Eamonn McCann

Published 03/02/2016

Justice Minister David Ford
Justice Minister David Ford

If we had a law allowing women, pregnant as a result of rape, to have abortions, they'd be queueing up to claim rape in order to qualify.

That's one implication of the Department of Justice's decision to appeal against last November's High Court ruling by Mr Justice Horner, upholding the view of the Northern Ireland Human Rights Commission (NIHRC) that European law gives women in the north a right to abortion in cases of rape, incest, or fatal foetal abnormality.

Justice Minister David Ford accepted the ruling as far as fatal foetal abnormality is concerned, but wants to overturn it insofar as it refers to rape. He says he fears that a lack of "legal certainty" on this score could lead to "abortion on demand".

We know from experience that there will be further appeals, injunctions, judicial reviews. The tangled mess is unlikely to be cleared up by the courts anytime soon, or, on present indications, by politicians anytime ever.

The prevailing nervousness about taking hold of the issue comes through in Ford's efforts to explain his apprehension that allowing abortion in cases of rape might inadvertently give carte blanche to abortion in any circumstances at all.

The Department of Justice's 2014 consultation paper declared that: "It is relatively easy to say that we need to address cases where pregnancy has been the result of rape, or incest, but there are other situations which need to be considered in order to cover all possible circumstances ... The situations in which women and girls may become pregnant as a result of criminal offending behaviour extend beyond the scope of the offence of rape, or incestuous sexual activity."

Limiting the right to abortion to cases of rape, or incest, would leave other justifiable cases out of account and could have other unintended consequences, too. So let's ditch rape and incest as reasons for allowing abortion altogether.

The consultation observes that the 1861 Offences Against the Person Act remains the basic piece of legislation: "However, it is case law regarding the interpretation by the courts of this legislation which has created the current framework for abortions in Northern Ireland."

The paper refers to the 1938 Bourne case, in which a London court acquitted a doctor who had provided a termination for a 14-year-old girl gang-raped and made pregnant by a bunch of soldiers. The court interpreted the 1861 Act to mean that abortion was legal if carrying the pregnancy to full term would "make the woman a physical, or mental, wreck".

But, strangely, the consultation paper makes no mention of more recent cases in courts closer to home. In 1993, the High Court in Belfast ruled that a 14-year-old made pregnant by her boyfriend and who was threatening to abort the foetus herself, or commit suicide, was entitled to an abortion, because carrying the pregnancy to full term would render her "a physical, or mental, wreck".

In 1994, a mentally disabled woman was given the right to an abortion, because of the potentially disastrous implications for her well-being of carrying the pregnancy forward. In 1995, the courts allowed abortion because of the disturbed state of mind of a pregnant 16-year-old in the care of the state.

Factoring in the broad precedents set by the 1993, 1994 and 1995 interpretations of the, should, as it stands, dispense with fears of dangerous consequences following from difficulty in defining rape and incest.

Irrespective of who will agree, or disagree, with their findings, the courts are well-capable of interpreting whatever law, or regulation, is put in place. Ford's difficulty is self-inflicted.

The debate on abortion is commonly conducted in terms which are casually insulting to women - mainly male politicians and functionaries discussing what limits to set on women's right to sovereignty over their own bodies, peppering their pronouncements with references to "vulnerable" women in "tragic" situations deserving of our "genuine compassion". The concept of strong women asserting their rights seems alien.

What's left out is the idea that when a woman finds herself with an unwanted pregnancy and considers the implications for herself and consults her own conscience, then it is she who must decide what to do. To say otherwise is simply to say that women can't be trusted.

Others may have opinions, to which they may be entitled, about what a woman with an unwanted pregnancy should do, and she may, if she likes, listen to their views, but in the end the choice must be hers.

To exclude this proposition from debate is from the outset to deny women any agency in a matter which intimately affects them and them only. It makes a mockery of the notion of women's rights.

Belfast Telegraph

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