Belfast Telegraph

Case law best guidelines for terminations

By Liam Clarke

We often hear that doctors risk life imprisonment if they carry out abortions in Northern Ireland. What we hear less often is that no doctor has been convicted, never mind jailed, for carrying out a termination within the health service. The courts invariably accept the doctors' view that the potential mother's health would suffer too badly if the pregnancy went full term.

What is more, the courts have never refused an abortion when one was applied for.

I drew the ire of former Health Minister Edwin Poots by saying the 1861 Act, which sets out the life imprisonment with hard labour penalty, was little more than a paper tiger that had no teeth.

Understandably, medical teams did not want to become test cases, but in the period up to 2009 about 90 abortions were carried out here by the health service.

My own wife was offered an abortion if a test she was taking showed the baby had a serious abnormality. That was 21 years ago. Thankfully, the baby was perfect and is now studying law.

When Mr Poots became Health Minister in 2011 he set out to clamp down and issued new guidelines, which did not fully reflect the weight of the case law. That scared doctors with its talk of "grey areas" and imprisonment, and the numbers fell.

The pre-Poots regime still left around 40 Northern Ireland women paying thousands of pounds each to have abortions in England. However, people like Sarah Ewart, who was refused an abortion in a case of fatal foetal abnormality, or rape victims, could have been accommodated.

The 1938 Bourne judgment, in which a pro-life doctor lawfully gave an abortion to a 14-year-old rape victim, is still the basis of our case law. It was taken under the 1861 Act.

In 1993 our courts allowed a pregnant minor an abortion after she threatened suicide. A year later they allowed another on the basis that giving birth posed a "real and serious" threat to the girl's mental or physical health.

The year 1995 saw two more terminations permitted by the courts, one for a mentally disabled woman who was a ward of court and who, it was agreed, would end up a "mental and physical wreck" if the pregnancy proceeded. Abortion was never treated as murder here, or anywhere else. The fact is that before Mr Poots started his attempted clampdown we had an admittedly flawed system, which, nevertheless, respected medical judgments.

Simon Hamilton, the current DUP Health Minister, has given new guidelines to the Executive, which meets today.

At its meeting, ministers should not forget the most basic principle of medical ethics - 'Primum non nocere' ('First, do no harm')

They should also show respect for women and their doctors and give proper weight to the case law.

Belfast Telegraph


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