EILEEN V. FEGAN and RACHEL REBOUCHE
NORTHERN IRELAND’S ABORTION LAW:
THE MORALITY OF SILENCE AND THE CENSURE OF AGENCY
ABSTRACT. This article explores the context within which abortion law and discourse in
Northern Ireland must be situated and understood, relying in part on post-modern insights
into the wider and long-term implications of feminists engaging law and by examining
the strategies employed in Northern Ireland around the issue of abortion. In 2001, the
Family Planning Association (Northern Ireland) took legal action to force the devolved
government to defend at a procedural level the unequal and uncertain form of common
law abortion regulation for Northern Ireland. The authors examine the strategy of this
review as well as the response of the High Court, suggesting that while it may begin to
challenge the legitimacy of abortion law, feminists and pro-choice advocates must prepare
for challenges beyond that, the greatest being the cultural challenge. The courts, legislators
and other public and political institutions (including the Northern Ireland Human Rights
Commission and the Northern Ireland Women’s Coalition) consistently explain the law’s
lack of provision for women with reference to the ‘pro-life’ majority views of Northern
Irish people. The authors question the legitimacy of this claim in a cultural climate of intimidation against the expression of alternative views. Women will continue to be marginalised
and devalued in this debate if the silencing of the pro-choice community and bodies
responsible for protecting human rights is not redressed. A case is therefore made for a
reconceptualisation of the abortion debate from the perspective of women’s agency, which,
alongside litigation and other strategies, is necessary to overcome the cultural censure that
currently prevents meaningful dialogue.
KEY WORDS: abortion law, agency, culture, feminist theory, foetal rights, human rights,
Northern Ireland, post-modern, pro-choice strategy
I NTRODUCTION
The ‘Northern Irish problem’ – the deep and often violent sectarian
division between its identifiable Catholic and Protestant communities1
– is notorious throughout the world. The Belfast (Good Friday) Agreement 1998 negotiated by political representatives, including the newly
established Northern Ireland Women’s Coalition (hereafter the Women’s
1 The terms ‘Catholic’ and ‘Protestant’ reflect (at a general level) and have become
synonymous with political affiliation in Northern Ireland, the former to indicate a desire to
re-unify (with the Republic of) Ireland and the latter, to remain constitutionally British and
a part of the United Kingdom.
Feminist Legal Studies 11: 221–254, 2003.
© 2003 Kluwer Academic Publishers. Printed in the Netherlands.
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EILEEN V. FEGAN AND RACHEL REBOUCHE
Coalition), promised a new legislative Assembly, power-sharing between
both communities, and human rights and equality provisions with complementing institutions. Heralding a new era in Northern Ireland’s social and
political self-perception, the Agreement gives reason to hope for a more
progressive and productive future. The Agreement even makes a specific
commitment to improve women’s participation in public life. However,
there remains widespread discrimination against women both socially and
legally. This article will argue that despite the legislative developments
brought about by the peace process, law continues to factor heavily in
women’s unequal status in both symbolic and practical ways. In particular,
abortion is still governed by a criminal provision originating in the midnineteenth century. Politicians, human rights organisations and even some
women’s rights activists continue to talk about this subject in terms rarely
associated with women’s rights.
In Northern Ireland the debate on abortion is constructed as a profoundly moral issue, invoking deeply held religious views on both sides
of the traditional divide.2 However, morality is not the only, nor arguably the most compelling, factor in either the social or legal approach. It
will be argued that vague universalist moral claims conceal other more
subtly dominant norms and values. These receive little public acknowledgement or attention in legal or governmental institutions. Additionally,
even within the orthodox perspective, there are several other layers to
the moral complexity of abortion, including: “the factual context of pregnancy, the values which inform the regulation of pregnancy and the history
of abortion regulation” as the Feminist Legal Action Group (hereinafter,
F.L.A.G.), one Republic of Ireland reform group, has noted (1998, p. 6). In
what follows, the moral, social and cultural factors shaping abortion law
and its application will be explored through questions that are pertinent to
promoting the full participation and equality of women in Northern Irish
society. The language used to promote peace and social progress, when
juxtaposed against that used to frame the abortion debate, shows how far
the latter fails to address either women’s reproductive agency or equality.
The general lack of political and legal will to address the issue of abortion
and the failure of public, equality and human rights organisations to facil2 In this respect Northern Irish religious and cultural understandings of abortion differ
from those informing the legal regulation in the Republic of Ireland, where the “right to
life of the unborn” is protected explicitly by the Constitution. The latter are described
by Fletcher (2001, p. 569) as reflecting a post-colonial and Catholic “desire to construct
a culturally authentic ‘pro-life’ Irishness in opposition to what has been perceived as a
British pro-choice culture”. She therefore argues that “the role colonial discourses have
played in abortion law and politics in the Republic of Ireland [do] not have any ready
application for Northern reproductive politics” (2001, p. 572).
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itate, open and constructive discussion of women’s reproductive control
still inhibit a reconception of the abortion debate in terms of women’s
rights. Recognition of these obstacles for feminists, given the Agreement’s
objective of achieving meaningful equality for Northern Irish women in
both private and public life, is crucial to shaping the abortion debate in
more constructive and substantive terms.
U SING L AW FOR W OMEN
Much has been written on the ways in which law inhibits and limits the
struggle for women’s equality and freedom.3 Since the nineteenth century,
feminists have explored the possibilities of using law to achieve social
change from a variety of political, practical and philosophical perspectives. Western liberal feminists sought reform of particular laws obstructing
women’s freedom and equality by demanding rights for women equal
to those of men in relation to the concerns most immediate at the time.
The success of early campaigns for suffrage, rights to own property and
to custody of children upon divorce, were great encouragement for the
widespread use of law to improve women’s social status and personal
power. As women became educated in greater numbers and began to join
the professions, equality through law with men seemed a realistic possibility. This approach found resonance in women’s movements spurred on
by civil rights campaigns in the 1960s and 1970s. However, as a result
of these ideas reaching a wider audience, it was perhaps inevitable that
some would begin to question their effects. Certain reforms which they
provoked, such as the Married Women’s Property Act 1882 or the ‘similarly situated’ standards for equality law, had a limited impact among
women, at times benefiting only the socially well placed. Feminists in
the 1980s (most famously, MacKinnon, 1989) therefore began to identify
with Marxist and socialist arguments, likening women to a disadvantaged class whose labour, both domestic and reproductive, is exploited
in the interests of patriarchy. However, like its theoretical predecessor,
Marxist feminism became subject to charges of determinism, essentialism
and ‘false consciousness’4 in respect of its radical claims – like lesbi3 A detailed account of the development of feminist legal thought is beyond the
confines of this paper. Barnett (1998) and Bridgeman and Millns (1998) provide excellent
theoretical and substantive accounts.
4 See, Smart (1989), Higgins (1995) and Fegan (1996a) for investigations of the implications of the concept of false consciousness for feminist legal theory and strategy. Fegan
(1999, 2002) gives examples of the developments it has provoked in the conceptualisation
of women’s ‘agency’.
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anism as the authentic expression of female sexuality – overshadowing
its more inclusive, socialist aims, such as enhanced state responsibility
for childcare and the ‘housewife’s wage’. These problems helped sustain
the default liberal understanding that all women needed was “more or
better rights” (Smart, 1989, p. 162) despite the limitations of those already
won.
However in the 1990s, when poststructuralist and postmodernist
insights were brought to bear on legal discourse, some feminists began
to question the use of law to improve the social position of women. The
post-modern focus on discourse and language (Smart, 1992) – the tools
of social hierarchy (rather than the structures of concern to Marxist and
socialist feminism) – yielded helpful insights into the subtle and often
taken-for-granted methods through which power is exercised, naturalised
and reproduced (Boyd, 1991; Fegan, 1996a). Many feminists, encouraged
by the avenues opened through this form of analysis, began to explore the
ways in which women continued to be devalued and controlled through
legal language and legal procedures despite the removal of explicit bias
from laws. One theme that has become synonymous with postmodern
legal feminism is the deconstruction of female stereotypes and identities that underpin specific laws and that subtly inform established legal
concepts, such as equality and rights.5 Sheldon’s (1993) examination of
the parliamentary debates preceding the 1967 Abortion Act shows how
even positive reforms may still be detrimental to women in the long run.
In this case, an ostensibly liberalising statute effectively institutionalised
the idea of women requiring ‘permission’ for their intimate life decisions
from a mainly male medical profession. Over thirty-five years later, legal
and social debates around abortion continue to be framed in these terms
throughout the U.K. (Lee, 1998).
Postmodern insights have therefore inspired increasingly sophisticated
knowledge about the relationship between law, social change and the status
of women. The complexity of this relationship is captured by Smart’s
characterisation of law reform as a process of “refracted and uneven development” (1986, p. 117). Rather than as a simple tool through which the
benefit for women may either be conferred or denied, law is multifaceted
and contradictory. Abandoning the belief that law is linear and straightforward “creates the possibility of seeing law as a means of liberation and,
at the same time, as a means of the reproduction of an oppressive social
order. Law both facilitates change and is an obstacle to change . . .” (ibid.).
5 See, Smart (1992) analysing the ways beyond sexism and discrimination in which law
exercises power over women through the production and reproduction of various female
identities, such as the ‘lone mother’.
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Other contemporary scholars, such as Conaghan (2000), explore how
these insights may inadvertently overwhelm feminist efforts to engage
with law and legal institutions to improve women’s lives at the level of
immediate material need. Pointing to the necessity of continuing to reform
the concrete structures that continue to disadvantage women economically,
she argues that the focus on language and identity though necessary, may
be insufficient by itself to effect meaningful change. However, this does
not detract from the usefulness of postmodern ‘tools’, such as discourse
analysis, for understanding and improving upon feminist law reform
efforts within differing cultural contexts. In Northern Ireland, this context
depends greatly upon the language used to identify oneself as belonging
to a community, which in itself can suppress legal and material changes
that would facilitate women’s exercise of reproductive agency. Viewed
in this way, feminists need not choose between materialist and discourse
frameworks of analysis (Fegan, 1996a). The increasing sophistication
within socialist feminism since the 1980s, consequent upon the revisitation of earlier accounts and Marxian concepts such as false consciousness
(Hennessy, 1993; Vogel, 1995; Hennessy and Ingraham, 1997), has shown
that materialist and postmodernist analyses need not be mutually exclusive,
and indeed that choosing between them would not serve the multifarious
interests of women (Fegan, 2002). This point is highlighted concretely in
respect of abortion, where material issues of service access and funding
must be confronted in addition to discursive, gender-biased cultural and
social norms which threaten women’s reproductive choice in more subtle,
but often more damaging ways. Claims of ‘post abortion trauma syndrome’
by anti-choice medics are but one example of how discourse can offset the
benefits of legal and available abortion (Lee, 1998).
Our theoretical position reflects concern with the methods of abortion regulation and debate prevalent within the particular cultural context
of Northern Ireland. Although women have certainly made an indelible
mark on the processes for peace and social reform, the traditionally
domestic characteristic of women’s roles in Northern Ireland, as well as
the ‘public/private’ division between the men and women, has been well
documented (Porter, 1998, 2000; Artexaga, 1997; McLaughlin, 1993). As
McCoy highlights (2000), the activism of women has been more or less
concentrated in three areas: communal rights for the two main traditions;
‘bread and butter’ issues such as education, health and poverty; and the
expression of women’s rights through community or self-help groups. In
terms of communal divisions, Yuval Davis has noted that despite their
activity in nationalist movements, women are still often conceived (and
valued) as biological reproducers of the nation and as the transmitters
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EILEEN V. FEGAN AND RACHEL REBOUCHE
of culture (1998 and 1997). In terms of social issues, women’s “prime
nurturing roles adopted through choice, coercion and/or socialisation”
can often sustain conservative ideologies that value consensus more than
equalisation of societal roles (Porter, 2000, pp. 142, 146). Considering this,
it is worth questioning how well the concepts of reproductive rights and
women’s agency can fit within this cultural framework, particularly in light
of the traditionally conservative Northern Irish approach to sexual matters
(fpaNI, 2002; Artexaga, 1997; Montgomery and Davies, 1992).
For these reasons, moving the debate forward demands a shift in
the discourse that helps construct and reinforce women’s agency. 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. In relation to Northern Irish abortion law, fundamental
questions regarding women’s agency in making such a personal and lifechanging decision have yet to be substantively addressed. Pro-choice and
human rights organisations have recently engaged with law to highlight
the inequities suffered by women in Northern Ireland, initiating a much
needed debate on sex education and female healthcare provision. However,
they have (and perhaps understandably) stopped short of challenging the
cultural norms that place women at the margins of the wider debate on
reproductive regulation. What follows is an exploration of the strategic
potential and outcome of the approach taken by the Family Planning Association (hereinafter ‘fpaNI’ – the acronym used by the organisation) in its
judicial review, the response of the new Northern Irish human rights body
in considering a right to reproductive healthcare and the process of the
Women’s Coalition in coming to an agreed pro-choice policy.
L ITIGATION S TRATEGY:
J UDICIAL R EVIEW OF N ORTHERN I RISH A BORTION L AW
Abortion Law in Northern Ireland
Under devolved government, Northern Ireland now has the opportunity to
define itself anew.6 However, other cultural signifiers remain untouched.
Northern Ireland retains a particular and peculiar legal position on abortion. Unlike the rest of the United Kingdom, it is not subject to the 1967
Abortion Act which exempts abortion from criminal sanction upon the
authorisation of two physicians acting “in good faith” in a defined set of
6 At the time of writing the devolved government in Northern Ireland has been
suspended since October 14th 2002.
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circumstances.7 Although subject to the same general prohibition under
the Offences Against the Persons Act 1861,8 Northern Ireland continues to
rely upon the case law exception first developed in 1939 in R. v. Bourne,
enabling doctors to carry out terminations in instances where continuation
of a pregnancy creates a serious risk that the woman will become a “physical or mental wreck”.9 As a result individual doctors are left to decide,
under threat of potential criminal prosecution, when any woman seeking
termination fulfils this criteria – a position attracting widespread attention and criticism both domestically and internationally.10 It is no doubt
difficult for a judge, to decide what would cause a woman to become ‘a
physical or mental wreck’. Yet doctors and midwives must continue to
treat and respond to women showing great distress over crisis pregnancies
in a variety of circumstances without consistent guidance as to the legality
of their actions (or indeed inaction). However, Northern Irish women
do seek abortions, either through illegal and often dangerous means or
through travel (mostly in secret and at great cost) to clinics in Great Britain
(Rossiter and Sexton, 2002). Women who travel receive abortions invari7 The 1967 Abortion Act s.1(1) defines those as, where (a) . . . the pregnancy has not
exceeded its twenty-fourth week and that the continuance of the pregnancy would involve
risk, greater than if . . . terminated of injury to the physical or mental health of the pregnant
woman or any existing children of her family; or (b) the termination is necessary to prevent
grave and permanent injury to the physical or mental health of the pregnant woman; or (c)
the continuance of the pregnancy would involve risk to the life of the pregnant woman
greater than if terminated; or (d) there is a substantial risk that if the child were born it
would suffer from such physical or mental abnormalities as to be seriously handicapped.
8 Amended in Great Britain by the Infant Life Preservation Act 1929 and in Northern
Ireland by the Criminal Justice (Northern Ireland) Act 1945.
9 R. v. Bourne (1939) 1 K.B. 687. The subsequent ruling in R. v. Newton & Stungo
(1958) Crim L.R. 469, reiterated the approach in Bourne and accepted that the physical
and mental health of the mother was included in the definition of ‘life’.
10 See, Furedi (1995) for a collection of opinions from academics, medics, local Equal
Opportunities and Human Rights representatives and international reproductive health
bodies, describing the criteria as “outdated” and “ambiguous”, and its application as
“uncertain”, “inconsistent” and “violat[ing] the standards of international human rights
law” (ibid., p. 1). In the response to the U.K.’s 1999 report, the Convention on the Elimination of Discrimination Against Women (C.E.D.A.W.) Committee expressed concern
regarding the inconsistency in which reproductive rights were applied:
The Committee notes with concern that the Abortion Act 1967 does not extend to
Northern Ireland where, in limited exceptions, abortion continues to be illegal. It
recommends that the Government initiate a process of public consultation in Northern
Ireland on reform of the abortion law. ‘United Nations Committee on Elimination of Discrimination against Women Concludes Consideration of United Kingdom
Reports’, 10 June 1999. WOM/1132 at 310.
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ably later in pregnancy and do not have access to post-procedure medical
care on return (ibid.). In the face of this antipathetic law and unsympathetic culture, those women still exercise agency – through their secret and
‘subversive’ actions – but only at great psychological, physical and financial costs (Northern Ireland Abortion Reform Association (N.I.A.L.R.A.,
1989, p. 1).
In legal terms, there has been little progress since an international
tribunal of lawyers, doctors and academics found in 1987 that:
[e]ven a woman whose pregnancy is the result of rape or incest, or whose health would
be seriously damaged by continuing the pregnancy cannot be guaranteed an abortion.
Doctors are frequently imposing their own religious and moral judgements under the guise
of complying with the law (ibid.).
The opportunity for the judiciary to question the continued use of the
law developed by their predecessors in 1939, arose in the mid-1990s
precisely because of the unwillingness of doctors to proceed with terminations (Kingston et al., 1997). The first two cases, Re K. and Re A.M.N.H.,
involved a minor/ward of the state threatening suicide and a mentally
incompetent adult respectively.11 In both cases, the court permitted the
termination as it ruled that both women’s physical and mental health were
at risk. MacDermott L.J. in Re A.M.N.H. concluded that the risk had to be
“real and serious”. The following year, in Re S.J.B. and Re C.H., which
similarly dealt with a mentally incompetent woman and a minor in the
custody of the state, the court further restricted the meaning of ‘physical and mental wreck’.12 Further to risk being “real and serious”, in Re
S.J.B., the court maintained that this risk must also be “long term”, thereby
narrowing the standard for legal abortion in Northern Ireland (ibid.). In
each of these cases, the court’s assessment of risk to the woman hinged on
the probability (and in cases of risk of imminent death, the possibility) of
harm to herself or to the future child, as based largely on the testimony of
doctors and psychiatrists.
Arguably these cases did not provide the judiciary with the opportunity to develop an argument for protecting women’s agency or reproductive rights. Each case involved an individual whose decision-making
power was reduced by either age or disability. Further, the cases were
heard before the incorporation of the European Convention into domestic
law, which could potentially provide a new rights-based framework for
11 Re K. (Unreported), High Court (Family Division), October 14th 1993 and Re
A.M.N.H. (Unreported), High Court (Family Division), January 21st 1994.
12 Re S.J.B. (Unreported), High Court (Family Division), September 28, 1995 and Re
C.H. (Unreported), High Court (Family Division), October 18, 1995.
NORTHERN IRELAND’S ABORTION LAW
229
resolving such issues.13 These obstacles granted, however, the court still
failed to elucidate standards clear enough to inform medical practice
in a variety of situations. The terms ‘serious’ and ‘long term’ imply a
narrow scope for abortion legality without illustrating the type of grounds
these labels might describe or the threshold sufficient to establish this
risk. Rather than attempt to develop a consistency of approach, the court
restrained itself by emphasising the need to look at abortion law issues
on a ‘case by case’ basis. There are, of course, potential strategic advantages to this approach. Pro-choice supporters do not necessarily want the
court to set firm boundaries which might lead to a restricted approach by
doctors. However, by providing no support for women’s agency in abortion
decisions, the court has left the decision entirely in the hands of physicians
without providing the medical profession any incentive for considering the
patient’s assessment of risk. From our perspective, it would have been
preferable for the court to clearly enunciate the implications of abortion
law for women and in considering this, recognise that doctors might need
to interpret the law in a more flexible manner.
Further to the limited interpretation by the Northern Irish courts, the
compatibility of the abortion law with the European Convention on Human
Rights (hereafter E.C.H.R.), and now the Human Rights Act 1998 (H.R.A)
is questionable. The Standing Advisory Committee on Human Rights
(hereafter S.A.C.H.R.) – the government sponsored human rights body and
forerunner to the Northern Ireland Human Rights Commission – reported
in 1994 that if a case had been taken to the European Court of Human
Rights, it might have ruled against the U.K. on the preliminary point of
uncertainty.14 These points were of course made by S.A.C.H.R. before
the introduction of the European Convention into domestic law and before
most of the judicial review cases in the mid 1990’s.15 However, there has
not as yet been any effort on the part of Parliament to inquire into the
implications of Northern Irish abortion law or to address what may be
13 Before incorporation the latter obligation was preceded by a preference for
Convention-friendly interpretation only where there is ambiguity in a statute (Dickson,
1999). The E.C.H.R. had little widespread impact and was not considered in the 1990s
abortion cases.
14 See, ‘Abortion Law in Northern Ireland: The Twilight Zone’ 18th Annual Report to
Standing Advisory Commission on Human Rights (S.A.C.H.R.) (1993); “Abortion Law on
Remand” 19th Annual Report of S.A.C.H.R. (1994). S.A.C.H.R. also noted that the law
might violate Article 8 (Right to Family and Private Life) within the European Convention
because of its variable and inconsistent application.
15 The H.R.A. 1998 also imposes the twin obligation upon courts as public bodies to act
(section 6), and to interpret (section 3) statutes consistently with the E.C.H.R. McGleenan
(2000) questions this assertion in light of the standards, however vague, laid out in Re
A.M.N.H. (1994) and Re S.J.B. (1995).
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serious issues of incompatibility between Northern Irish abortion law and
the E.C.H.R.
There has also been no detectable attempt to bring a case to the
European Court on Human Rights or for a woman denied an abortion to
take a case to the Northern Irish High Court.16 There are a number of valid
obstacles to this type of litigation strategy. Firstly, there are substantial
costs in pursing a case and significant delay before the case is resolved,
particularly at the international level. Secondly, the sheer amount of public
and press scrutiny would be daunting for anyone whose private life would
be exposed to public consumption. In this context, the litigation strategy
eventually initiated by fpaNI in May 2001 – a petition for judicial review
of the existing law – was limited to a request for clarification of the legality
of abortion and, as such, did not necessarily assert a right to abortion.
The Legal Basis of the fpaNI Case: Certainty, Clarity and Women’s
Health
In May 2001 the fpaNI applied to the High Court in Belfast for judicial review of the failure of the (then devolved) government department
responsible for the provision of health care to provide adequate information on, and access to, legal abortion services within Northern Ireland. In
asking the court “to advise the Department of Health, Social Service and
Public Safety (D.H.S.S.P.S.) that it is their statutory duty to ensure that
all women in Northern Ireland have equal access to reproductive healthcare services”,17 the fpaNI case is an attempt to force the court to clarify
when terminations are legal under the common law rules. As such, the
judicial review application is, carefully, morally neutral in substance. It
challenges the law at the level of administrative procedure and practice
only. Yet this strategy has not had the desired effect of neutralising the
issue or preventing an anti-choice backlash.18 Despite the fpaNI’s attempts
to educate the public about the legal situation (and its anomalies, especially
16 In the cases referenced above, the state sought a judicial review to approve an abortion
for the applicant who was in care or a ward of the state.
17 FpaNI, “Challenge”, Campaign Bulletin, Issue 1 (May 2001) at p. 1. The bulletin aims
“to inform the people of Northern Ireland why fpaNI is committed to working towards
ensuring equality of rights for all women in Northern Ireland” (my emphasis), demonstrating the extent of the cultural challenge which precedes and must subsist alongside any
successful pro-choice law reform strategy.
18 See, “Abortion Fight for N.I. Women” (www.bbc.co.uk online news: 09/05/01), a title
that flies in the face of the fpaNI’s subtle approach. It might be argued that any action to
challenge the status quo – that of an apparently humane but ultimately unenforceable law
– would inevitably result in the construction of the issue as a ‘fight’ rather than women
gaining better and clearer control over the quality of their reproductive lives.
NORTHERN IRELAND’S ABORTION LAW
231
for the medical professionals involved), anti-choice groups have responded
as if the action were about extending abortion, accusing the organisation
of trying to usher in the 1967 Abortion Act in to Northern Ireland ‘by
the backdoor’. Notwithstanding its inaccuracy, this emotive message has
seemed to capture and stay in the public’s attention more than the more
complex ideas underlying the fpaNI case, discussed below.19
Despite the designed moral neutrality of the legal argument, the antichoice lobby gained the right to participate in the judicial review hearing.
In addition to the Catholic Bishops, four anti-abortion groups – the Society
for the Protection of the Unborn Child (S.P.U.C.), LIFE, Christian Action
Research and Education (Care) and Precious Life – were given permission
by the High Court to intervene in writing on grounds of public interest.
Lord Brennan Q.C., applying on behalf of S.P.U.C., said the effect of new
guidelines would be to widen the scope of abortion services in Northern
Ireland. He said he was particularly concerned about the right to life aspect
of the Human Rights Act 1998, despite European precedent that does
not include a foetal right to life under Article 2 of the E.C.H.R.20 He
added: “[t]his issue is of such wide importance it should not just be left
to the Department of Health and the Bishops” (fpaNI, 2001). That these
groups have gained access to the hearing is very significant for pro-choice
discourse and strategy, particularly in light of the absence of women’s
interest groups, medical associations and pro-choice groups intervening.21
Thus while pro-choice advocates seem to have constructed abortion as a
health care matter, the anti-choice lobby have already succeeded in the
legal forum in pursuing the issue in terms of the morality of abortion.
Also importantly, the framing of the abortion debate in terms of balancing rights, those of women seeking abortions and those of so-called
‘unborn children’, contorts the central issue. As has been discussed, the
relevant legal question is not whether the foetus has certain and discernable
legal rights, but is arguably how and by what means should the repro19 See, ‘Anti-abortion groups join block to FPA bid’, Irish News, 18 October 2001 and
‘Judge gives pro-life groups role in abortion hearing’, The Belfast Telegraph, 17 October
2001.
20 In Paton v. U.K. (1980) 19 D. & R. 244, the European Court of Human Rights held
that an absolute right to life could not feasibly be established because it would prohibit any
legal abortion. Such a restriction would ultimately clash with the rights of women seeking
terminations. The court expanded upon this reasoning in H. v. Norway (1992) 73 D. & R.
155, upholding a law that allowed women to access abortion for social, as well as health
reasons.
21 This remark is not made without noting the lack of funding that has plagued many
women’s interest groups in comparison to the very well resourced anti-choice campaign.
There is not a similar organisational structure for the pro-choice movement in Northern
Ireland.
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ductive rights of women be guaranteed. The efforts of those promoting
‘rights of the unborn’ seek to ignore the centrality of women’s experiences
to the abortion issue by making the provision of reproductive healthcare genderless. The fpaNI’s focus on the need for clear and accessible
information does not necessarily contest this position.
A Question Of Strategy: Women’s Health vs. Women’s Agency
The fpaNI has seemingly been convinced of the strategic necessity of
constructing abortion as a matter of women’s health. We must now
consider whether this sufficiently challenges the cultural and legal norms
of Northern Ireland, as well as the consequences of continuing to avoid
constructing abortion as fundamental to women’s agency. In particular,
we need to examine whether legislators or courts aid or inhibit this shift
to a focus on agency. The abortion issue was brought to debate in the
new Assembly (June 2000), as a result of a motion by a member of the
Democratic Unionist Party (D.U.P.) to prohibit future motions to extend
the 1967 Abortion Act to Northern Ireland.22 In the course of the debate
M.L.A. Boyd stated:
I am confident that my view on abortion is one that is held by the vast majority of people in
Northern Ireland. The case against an extension of the 1967 Abortion Act is overwhelming,
and the vast majority of people in Northern Ireland would oppose it.23
His unquestioned belief in the universality of his opinion is certainly detrimental to the airing of a determinedly pro-choice position. This statement
was in response to an amendment tabled by the Women’s Coalition to have
the abortion issue discussed more appropriately – in detail and at length by
the Assembly’s Health Committee. While the proposed amendment did not
succeed, it is nevertheless promising from our perspective, which seeks to
move from the uncritical assumptions expressed by M.L.A. Boyd, that not
all members of the legislative assembly shared this opinion. David Ervine,
Leader of the Progressive Unionist Party (P.U.P.), helpfully pointed out:
“[t]he Member who introduced the motion set the scene clearly when he
described the foetus as ‘he’ ‘he’ ‘he’ ” (ibid., p. 13). Moreover, it also
appears that the majority of female M.L.A.s are not in opposition to abortion (Cowell-Meyers, 2003). Arguably, then, there is evidence to suggest
that delving deeper into what is claimed as a “vast majority” of anti-choice
22 The D.U.P. is widely known as a conservative, anti-Agreement party, traditionally
opposed to abortion. It is one of the parties known beyond Northern Ireland, due largely
to its outspoken leader, Free Presbyterian Minister and Westminster M.P., M.E.P., the
Reverend Ian Paisley.
23 Official Report of the Northern Ireland Assembly, Hansard Report, June 20, 2001
(www.ni-assembly.gov.uk/record/000620.htm).
NORTHERN IRELAND’S ABORTION LAW
233
opinion may reveal an undercurrent of support for other views. With this
are other indications that public perception is not as black and white as
M.L.A. Boyd would have us believe. On the day that the decision in the
fpaNI judgment was released, a Belfast Telegraph pole recorded that fiftyeight percent of respondents thought that abortion on demand should be
legalised.24 Prior to this, the 1998 Northern Irish Life and Times Survey
showed that almost forty percent (with an additional twelve percent undecided) supported broader grounds for abortion.25 When these statistics are
considered in light of other evidence that more people are moving toward
more permissive attitudes about gender roles and sexual mores, a very
different picture starts to emerge (Dowds, Robinson, Gray and Heenan,
1999).
While this evidence suggests that a cultural sea-change may be at work
in Northern Ireland, it seems to us that pro-choice advocates in Northern
Ireland have learnt so well how to work within the current cultural regime
that it is difficult now to move beyond the language of ‘women’s health’
to what we have argued are more empowering terms for reproductive
rights such as ‘agency’, or even ‘autonomy’ or ‘rights’.26 While abortion
is undoubtedly a health matter, it has proved less politically contentious
– it is even safer – to talk about health rather than talk about women’s
rights. This neutralised approach is understandable given what has been
discussed earlier as a traditionally conservative approach to sexuality and
to reproductive issues. Perhaps there is a fear of political and legal backlash
or of losing the possibility of employing the common law exception in a
more expansive, albeit informal, fashion.27
For these reasons, it is crucially important to unravel the possible
consequences of current language and strategies, in this instance of
the fpaNI, for future debates, regulation, medical practice, state provision of and support for abortion services. Politically, the fpaNI strategy
24 See, “Abortion Poll”, Belfast Telegraph, July 7, 2003, www.belfasttelegraph.co.uk.
25 Northern Ireland Life and Times Survey 1998, www.arc.ulst.ac.uk/nitl/.
26 The concepts of autonomy and rights can be problematic from both socialist and
postmodern feminist perspectives. Some argue that they have not produced unqualified
successes in other jurisdictions and may even have served to heighten social tensions
around abortion in the U.S.A. Our point is not to advocate their use, but to comment upon
the limitations of feminist discourse around reproduction in Northern Ireland and to a lesser
extent, in Great Britain.
27 Commentators such as Kingston et al. (1997) and McGleenan (2000) have noted that
the Northern Irish abortion law could potentially be more liberal than that of the rest of the
U.K. For instance, there are no time limits for abortion in Northern Ireland other than the
implication from the Criminal Justice Act 1945 that a foetus cannot be destroyed if it is
capable of living outside of the mother’s body.
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EILEEN V. FEGAN AND RACHEL REBOUCHE
applies pressure to the government to defend the anomaly of a different
law and unequal health care provision within the U.K., and to ensure
devolved institutions and ministries live up to the same legal and administrative responsibilities as those at Westminster. Practically, it raises serious
issues around the quality of healthcare provisions and information for
those entitled to abortion services and those medics delivering these
services. Theoretically and strategically, it illustrates the pressures under
which feminists are working. In bringing the focus directly to the interrelationship of law and culture in controlling the behaviour, defining the
identity and limiting the status of women in society, it forces feminists
to deal with the thorny issue of how to address deeply held attitudes and
beliefs that have severe consequences for the quality of women’s lives. Our
argument has been, however, that the space created by a deconstruction of
legal and cultural discourse around abortion may provide pro-choice advocates with a real opportunity to reformulate the debate around women’s
concerns.
In stopping short of raising vital questions about women’s agency, the
fpaNI strategy may reinforce the functional view exhibited in the 1967
Abortion Act, which creates categories of women who deserve abortion
on grounds of their unfitness for motherhood. It may also fail to unpack
conventional assumptions as to the population’s beliefs on the subject. The
decision in the fpaNI case, released July 2003, highlights these issues: it
at once reaffirms the legality and the practice of abortion, but at the same
dismisses evidence of an unworkable law on a very technical interpretation of ‘clarity’, while reaffirming the unquestioned right of the medical
profession to decide when an abortion is legal. In this way, the decision,
while arguably not incorrect within the strict application of the law and
the confines of judicial review, perpetuates a trend that we find worrying
from a perspective which seeks to change the terms of reference in abortion
discourse.
The fpaNI Decision: Promises and Problems
A year and a half after the case was heard, Kerr J. dismissed the fpaNI’s
application for judicial review. The court found that there was no lack
of clarity in the law but rather that the law itself was difficult to apply.
As such, Kerr J. found that guidance issued by the Department of Health
would not change the difficult aspects of the law. This task, as he suggests,
is for the legislative process, either in amending the law or passing new law.
Further, Kerr J. held that the fpaNI’s assertion that women are denied legal
abortions in Northern Ireland was unconvincing, and thus failed to support
NORTHERN IRELAND’S ABORTION LAW
235
the claim that there is wide misperception about the state of the law and
that women are denied services to which they are legally entitled.28
In some ways, the decision in the fpaNI case could be a blessing in
disguise. Given what we have noted as a conservative culture and an
unwillingness on the part of the legislature to address the issue other than
in restrictive ways, guidance could have conceivably narrowed the scope
of legal abortion.29 Kerr J. clearly states that abortion is legal in Northern
Ireland in certain circumstances. The judgement sets out principles for
legal abortion and further asserts that these should be referenced in the
future in deciding when abortion is permissible.30 This is a positive and
commendable step in addressing what the fpaNI had described as the
“chilling effect” around the provision of abortion, and in undermining
any perception of the public and of the medical profession that abortion
in Northern Ireland is illegal. By openly declaring the legality of abortion and affirming that the law is a difficult one to apply, the court has
made some progress in dealing with abortion in a more focused and open
manner. Also importantly and counter to arguments made by the antiabortion interveners, Kerr J. emphasised that “termination of pregnancy
is a health issue” and as such is a healthcare service covered by the duties
and responsibilities of the Department of Health (ibid., para. 53).
28 [2003] Northern Ireland Legal Quarterly 48 (delivered July 7, 2003).
29 Kerr J. also noted that if the Department might offend women’s Convention rights
were it to pass guidelines that restricted current rights to abortion that Northern Irish
women have (ibid., para. 57).
30 Kerr J. relied heavily on the argument put forward by Mr Nicholas Hanna Q.C.,
acting for the Department of Health, and distilled the previous case law into the following
principles:
•
•
•
•
•
•
Operations in Northern Ireland for the termination of pregnancies are unlawful unless
performed in good faith for the purpose of preserving the life of the mother;
The ‘life’ of the mother in this context has been interpreted by the courts as including
her physical and mental health;
A termination will therefore be lawful where the continuance of the pregnancy
threatens the life of the mother, or would adversely affect her mental or physical
health;
The adverse effect on her mental or physical health must be a ‘real and serious’ one,
and must also be ‘permanent or long term’;
In most cases the risk of the adverse effect occurring would need to be a probability,
but a possibility might be regarded as sufficient if the imminent death of the mother
was the potentially adverse effect;
It will always be a question of fact and degree whether the perceived effect of nontermination is sufficiently grave to warrant terminating the pregnancy in a particular
case. (ibid., para. 37)
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EILEEN V. FEGAN AND RACHEL REBOUCHE
Despite these more promising aspects of the judgement, the decision
does little to deconstruct conventional discourses that frame abortion
solely as a medical matter and not as vital to women’s agency. It is
worrying that the evidence put forward by the fpaNI, namely, in respect
of the number of doctors adverse to performing legal abortions and the
number of women potentially denied legal abortions, can be so readily
dismissed by the court. In relying on a comparison with the number of
women receiving abortions in England under section 1 (1) (b) and (c) of
the 1967 Abortion Act, the court agreed with the Department that only
4 abortions carried out in England could have been carried out legally in
Northern Ireland. However, the decision fails to consider the difference of
interpretation, and arguably different cultural contexts – under the 1967
Abortion Act wherein sections 1 (1) (b) and (c) were designed specifically for the most extreme cases of late term abortions. The court also
failed to recognise that this approximation does not take into account the
number of women denied abortion in Northern Ireland who do not travel to
England and may have had legal grounds to seek termination. As yet, the
Department had not conducted research into or consulted on the practice of
abortion in Northern Ireland. However, the absence of such evidence does
not mean these women do not exist; rather, it signals a role for the Department in gathering better evidence of the experiences of women seeking
abortion services. As demonstrated by the fpaNI, there is no established
‘good practice’ by which doctors decide how ‘real, serious, long term risk’
will be measured. It seems strange that the court, in finding no evidence of
uncertainty among the medical profession, neglected to comment on the
lack of any certainty or, for that matter, consistency in abortion practice.
Although there might be the legal distinction, as highlighted by Kerr J.,
between the law and the application of the law, the assertion that the law
is clear has potentially very damaging effects. Firstly, it provides little in
the way of motivation for legislators to reform laws in response to what
may be changing circumstances or to think about how law could be better
drafted and better applied. As has been highlighted by the 2000 Assembly
debate on abortion, the relevant legislative bodies have made no in-roads in
clarifying a difficult and refractory law and have instead retreated behind
what we suspect may be the incorrect presumption that the majority people
in Northern Ireland are always opposed to abortion. More generally, the
assertion that the law is clear does not inspire confidence that the Department of Health will work toward consistency of practice and fair access to
health services. This does little to check or challenge the overwhelming
power that physicians have in deciding which fact situations constitute
risk that is “real and serious” and “permanent and long term”. Of greater
NORTHERN IRELAND’S ABORTION LAW
237
concern is the continuing lack of clarity in establishing the threshold necessary to prove risk with ‘real, serious and long term’ effects. These terms in
themselves imply a certain degree of ambiguity. Thus if the law is “clear
and easily absorbed”, although physicians must make “value judgements
of subtlety and complexity”, the worry remains that physicians will opt not
to make these complex decisions rather than misread and thus misapply a
‘clear’ law. Further, this construction of physician discretion leaves little
ground for a woman to question a physician’s decision outside the confines
of a courtroom (ibid., para. 39).
One option precluded by Kerr J.’s judgement is that the Department
has a duty to ensure that medical professionals apply principles governing
abortion fairly, consistently (to the extent possible) and in consideration
of the rights of women seeking terminations. This falls more in line with
human rights based arguments which the fpaNI could not make because, as
Kerr J., noted it was not a ‘victim’ under section 7 of the H.R.A. However,
there was room for obiter dictum that emphasised the need for fairness
in application and for regard of the opinions of the woman seeking the
termination. Further, the court as a public authority could potentially read
these concepts into its own formulation of the legal principles governing
interpretation of the common law on abortion.
Ultimately, however, Kerr J. is constrained, firstly, by the scope of its
judicial review jurisdiction and by the nature of the legal question posed
the fpaNI. Secondly, he is limited by the character of the law itself, which
we have already shown is reflective of a context adverse to women’s reproductive rights. However, the larger question at issue remains unaddressed:
how to shape the law for the benefit of those who use it. The decision is
indicative of problems inherent in the broader framework within which the
fpaNI decision is situated. When the law is embedded in a cultural framework made up of particular and unchallenged assumptions about women,
we cannot hope to change it without debate about our society’s (and
often our own) deepest held ideas and beliefs. The attendant controversy,
possible backlash and inevitable political risks of such work now needs to
be considered in light of events such as the fpaNI strategy and judgement.
As the Northern Ireland abortion situation illustrates, feminist efforts to
change the discourse of law must also seek to inform the expression of
culture with an understanding of women’s agency.
T HE C ULTURAL ROLE OF L AW
Carol Smart has warned feminists of the need to be aware of the dangers
of placing women’s concerns before law, lest they invoke a power already
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EILEEN V. FEGAN AND RACHEL REBOUCHE
loaded against them (1989, p. 138). She locates law’s power in its ability to
define and thereby to “resist and disqualify alternative accounts of reality”
(ibid., p. 5). It is not surprising then that law’s definitions often take precedence over women’s and that law retains the right to define even in the
face of “alternative definitions and accounts” (ibid.). This is a powerful
obstacle to feminists’ ability to shape or to predict the outcome of any legal
engagement. But where, as in the case of abortion, women’s most intimate
life experiences are already before the law, though not always on their own
terms, there is little choice but to engage. Smart does acknowledge that
when it becomes necessary we must reflect upon and choose the terms of
engagement wisely (ibid., p. 2). Yet she does not address the specific role
of culture, in addition to that of law, in silencing women, in impacting
negatively upon feminist strategies and in creating positive possibilities
for achieving change through law. Without a consideration of how deeply
rooted cultural norms contribute to legal constructions of gender, we have
limited insights into how feminists might engage with law in contexts
where cultural as well as legal discourse is hostile to women’s agency.
That is, where we are in danger of not only invoking a power weighted
against us, but of waking the sleeping giant we have so far escaped only
by tiptoeing around.
The decision to challenge Northern Ireland’s abortion law through the
courts follows the use of litigation strategies in other jurisdictions, albeit
in very different constitutional (and cultural) frameworks. In the U.S.A.
and Canada prohibitive abortion laws were struck down through contesting
their application in specific rights-based cases. However, the Roe v. Wade
and Morgentaler31 decisions in the U.S.A. and Canada respectively took
place within contexts framed by constitutional guarantees of privacy (in
the U.S. Constitution), liberty and security of the person (section 7 of the
Canadian Charter), neither of which is similarly replicated in Northern
Irish legal or social culture. Whereas the North American courts’ abortion reforms were facilitated by the acceptance of the entrenched rights
of citizens, these concepts are contested in Northern Ireland on a daily
basis. There is a culture of collective reliance and responsibility, cultivated
and reinforced by family and social networks where women, particularly
in their role as mothers, have been seen to carry the weight of collective
responsibilities (Ward, 2003; Porter, 1998; Edgerton, 1986). It has been
suggested more specifically that women are “more active on behalf of their
own community than their own gender” (McCoy, 2000, p. 19). As has been
the case for so many societies, as women achieve equal standards in education and income, despite the ‘double shift’ of both unpaid work inside and
31 Roe v. Wade (1973), 410 U.S. 113; R. v. Morgentaler [1988] 1 S.C.R. 30 (S.C.C.).
NORTHERN IRELAND’S ABORTION LAW
239
paid employment outside the home, increasing numbers of women are
in a position to challenge culturally assigned gender roles.32 Pro-choice
strategy can tap into this ideological space as well as the changing tides of
public opinion in Northern Ireland. Arguably, such strategies must eventually do so if they are to achieve the shift in social consciousness which we
consider necessary to framing the legal debate in terms of women making
their own reproductive decisions.
The fpaNI has been repeatedly accused by anti-choice groups of using
the judicial review process as a lever for forcing the government to extend
the 1967 Abortion Act to Northern Ireland. This ‘solution’ has indeed been
mooted within the pro-choice communities in both Northern Ireland and
Great Britain, with many agreeing that such an outcome would address the
immediate problem of clarity in the law and create more access to abortion
services. However, without a prior shift in Northern Irish culture and abortion discourse, extension of the 1967 Abortion Act could cause further
problems. Most immediately, there are practical as well as ideological
problems particular to the context of Northern Ireland. Apart from the strategic inconsistency of endorsing a model British feminists and pro-choice
activists have long sought to reform,33 it puts Northern Irish women at the
mercy of a medical profession that has been seen to be largely conservative
in their attitudes concerning abortion (Francome, 1994). Even after the
High Court declaration in 1993 (in Re K.) that a termination for a minor
was legal, no doctor could be found to perform it within the region. This
is in sharp contrast with the liberal approach to the provisions of the 1967
Abortion Act taken by doctors in Great Britain. In addition, the communal
culture of the jurisdiction may be enough to prevent many, particularly
rural, women from attempting to access abortion near home.
At the present juncture, without a clear and positive pro-choice position
that puts women at the centre of the abortion debate, anti-choice opinion
will continue to frame its terms. In the absence of a strongly pro-choice
education and awareness-raising strategy, the inevitable backlash might
create greater fear and opposition in public consciousness and encourage
mildly conservative or undecided General Practitioners to lodge conscientious objections or refuse to provide services. The introduction of the
Abortion Act against what is perceived as a polarised and an emotionally
32 See the Department of Enterprise, Trade and Investment, Statistics and Research:
Women in Northern Ireland, January 2003 for statistics detailing women’s pay and levels
of education. At the time of the survey, women’s pay was steadily increasing to meet that of
men’s and women were on par with men in terms of higher and further education, despite
gendered differences in subjects selected.
33 See, “Voice For Choice: The Campaign to Secure Abortion on Request Throughout
the U.K.”: http://www.vfc.co.uk. It is led by the Pro-Choice Alliance based in Great Britain.
240
EILEEN V. FEGAN AND RACHEL REBOUCHE
charged cultural backdrop might even give way to a more restrictive interpretation of the 1967 Act than is currently experienced in the rest of the
U.K. This has material consequences for women, but also a more subtle,
ideological effect upon how law, legal process, justice and neutrality are
perceived to operate in Northern Ireland.
We must combine efforts at legal reform with work to further an awareness of the differences in women’s relationship to law in varying cultural
contexts. Theoretically and at the most general of levels, cross-cultural
understanding is a necessary ingredient to enable feminists occupying
diverse spaces to foster constructive debate and to exchange their knowledge and experiences. Practically, and as will be discussed in relation to
the reproductive policy of the Women’s Coalition, this ‘borrowing’ process
can help build strategies better tailored to the exigencies and norms of the
cultural contexts within which they are applied (Fox and Murphy, 1992).
But while we need to be sensitive to the experiences and cultural realities
of women’s lives, cultural and legal transformation needs to draw upon
the themes and resources of broader feminist discourse if progress is to
be made to reflect women’s agency in abortion decisions. It is of course
difficult to negotiate between the demand for hermeneutic sensitivity and
the commitment to more universal ideas of women’s rights. This negotiation, though, may help better recognise women’s agency by appealing to
women’s rights in the context of women’s lived experiences.
Currently, Northern Irish women’s reproductive needs place them
before the law as objects. A failure to comply with a doctor’s advice
and diagnosis in respect of a crisis pregnancy by seeking an abortion in
Northern Ireland could expose women to criminal liability. According to
Smart, the challenge for feminists in such a situation is to re-enter law
on a different and more empowering basis (1986, p. 121). To some extent
the fpaNI has already begun this process by strategising around the lack
of certainty in applying abortion law. Yet, it is not only the discriminatory
content of law that must be confronted in feminist legal theory and strategy.
Feminist activists and scholars need to go beyond this to expose the wider
cultural construction and categorisation of women taking place at various
levels within legal discourse. The lack of clarity and accountability of law,
as now exacerbated by the decision in fpaNI case, may also be considered
problematic where it retains the power for those applying it to control
behaviour in response to counter-cultural challenges. More pervasively, the
impenetrability of legal procedure, the perceived objectivity of legal education and the obscurity of legal language play a role not only in defining
law as an authoritative discourse, but also in reinforcing and defending its
manifest cultural norms against change.
NORTHERN IRELAND’S ABORTION LAW
241
The delay of the court in coming to a decision and the court’s response
at each stage of the judicial review needs to be scrutinized in public forums
as part of a complementary strategy to communicate issues around the
rights of women implicated in the abortion decision and to challenge the
cultural silence around the issue. Beyond scratching the surface of cultural
norms and exposing their disproportionate gender effects, feminists must
break down this legal mystification process, to enable all cultural participants – not just lawyers and academics – to engage in such significant
debates as active agents. This is not to suggest that people in Northern
Ireland have no agency at present in respect of the abortion issue. Rather
it is that participation as active agents is limited by the lack of information, legal clarity, openness and power vis-à-vis the powerful discourse of
law. Nor is it suggested that education, empowerment and awareness of
alternative norms and their effects will necessarily lead anyone to develop
the perspective suggested here. However, gender-biased cultural norms
backed by the force of law deserve to be considered by greater numbers
and at a deeper and more honest level than is currently happening in
Northern Ireland. In contemplating strategies to improve women’s lives,
it is important that feminists acknowledge and respond to the reality of
lived experiences and remain sensitive to the norms and ideals women
themselves may wish to uphold. Yet in wishing to move the abortion
debate forward, it is also important to appeal to concepts which allow us
to unpack norms that impact negatively on women. In this vein, it is worth
considering the cultural role of the foetal ‘right to life’ (as it is constructed
through various campaigns, often led and supported by women) in shaping
and constraining both law and feminist strategy related to abortion in
Northern Ireland.
Foetal Rights and Failing Women
The anomaly and unworkability of the abortion law has not been the
only issue to which Northern Irish feminists and pro-choice advocates
have had to respond. Anti-choice groups, with backing from the established churches, have campaigned for the right to life of ‘the unborn’ to
be included in the proposed Bill of Rights for Northern Ireland. A new
Northern Ireland Human Rights Commission (hereafter the N.I.H.R.C.)
was established as part of the Agreement. Under the Agreement, the
N.I.H.R.C. is charged with consulting the public and advising the Secretary
of State on a package of rights, supplementary to the E.C.H.R., which
reflect “the particular circumstances of Northern Ireland”.34 Commen34 Belfast (Good Friday) Agreement 1998, “Rights, Safeguards and Equality of Oppor-
tunity” at p. 18.
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EILEEN V. FEGAN AND RACHEL REBOUCHE
surate with the demands of promoting peace and reconciliation after thirty
years of sectarian conflict, it has conducted a widespread and thorough
consultation process over a two-year period on what should be included
in a Bill of Rights. Groups such as Precious Life and S.P.U.C. have
made efficient use of the N.I.H.R.C.’s effort to include public opinion
in this process – for example, a widely distributed, pre-formulated leaflet
campaign requested the N.I.H.R.C. to acknowledge the unborn right to life
in the Bill of Rights as a reflection of a particularly Northern Irish ethos.
Both the proforma and regular updates on the progress of the campaign
appear in local Catholic Church bulletins and are distributed at shopping
centres, markets and other public venues. Due to this paper campaign, as
well as the very visible and vocal presence of anti-choice groups at events
hosted by the N.I.H.R.C., foetal rights discourse has seemingly dominated
public debate on abortion.35 The specific Northern Irish legal context of
abortion, as well as the diverse needs of women, has been overshadowed
by the closure of what could have been an opportunity for honest and
constructive debate. Instead, discussion around the ways in which women
are materially disadvantaged, yet ideologically valued, for their role as
child-bearers and how this might effect their choices, has been overshadowed by the anti-choice’s perception of the declared universal abhorrence
of abortion. This campaign is coupled with the on-going intimidation of
organisations like the fpaNI and the Brook Clinic.36 At this time of social
transition in Northern Ireland, when the opportunity exists to re-negotiate
concepts of nationality, ownership and self-identity, those charged with
leading the process of change need to help reconstruct this debate and
challenge this claimed shared morality about abortion.
The N.I.H.R.C. has refrained from commenting on issues related to
abortion, even within the context of its laudable effort to include a right
to reproductive healthcare (discussed below) within its proposed draft.
At the launch of the consultation document for the Bill of Rights, Chief
Commissioner Brice Dickson asserted:
[The Commission] take[s] no position on the abortion issue, saying only that it should be
dealt with by specific legislation.37
35 One such event took place at the King’s Hall on September 11th 2001, a week after
the official launch of the consultation document. It is also to be noted that the N.I.H.R.C.
did not set up a panel of experts to discuss the place of women rights within the Bill of
Right (as it did for other constituencies and interests, e.g., ‘Children’ and ‘Victims’), nor
did initially produce any material to consult on the issue.
36 The Brook Clinic provides contraceptive advice and services for young people in
Belfast and throughout the U.K.
37 Text of the speech delivered by Professor Brice Dickson, Chief Commissioner of the
Northern Ireland Human Rights Commission, at the launch of the consultation document,
Waterfront Hall, Belfast, September 4, 2001.
NORTHERN IRELAND’S ABORTION LAW
243
However, the relevant legislative bodies, as noted, has repeatedly failed to
engage with any reform-minded agenda on the issue. The N.I.H.R.C. also
signalled from the first day of the consultation document’s release that it
did not intend for the Bill of Rights to address the issue of abortion or for
the reproductive healthcare clause to include a right to abortion. Certainly,
in light of the activities of anti-choice groups, including the picketing
and infiltration of the few conferences held on reproductive rights,38 the
environment for expressing public views about abortion is unquestionably
hostile. For our purposes, we must consider the significant consequences
of the silence of the legislatures, the judiciary and the N.I.H.R.C. both for
women’s agency and women’s cultural positioning in Northern Ireland.
Silencing the Northern Ireland Human Rights Commission
The N.I.H.R.C.’s efforts to address the needs of women in post-conflict
Northern Ireland culminated in the inclusion of a Women’s Rights Chapter
in the draft Bill of Rights (N.I.H.R.C., 2001, Ch. 5). It outlines four specific
rights: a right to equality between men and women, freedom from violence,
a right for women to political participation, and a right to reproductive
healthcare. In this, the chapter is very progressive in acknowledging the
material disadvantage, physical abuse, lack of a public voice and lack
of access to information that make other human rights meaningless for
many women. The N.I.H.R.C. is certainly to be applauded for including
women’s experiences explicitly within the text of its draft human rights
document – a step deserving of more detailed and deeper analysis than
can be provided here. The inclusion of a specific right to reproductive
healthcare and the N.I.H.R.C.’s approach, however, needs attention when
considering the future legal and cultural status of abortion in Northern
Ireland.
The clause guarantees: “[e]veryone . . . the right to have equal and
free access to sexual and reproductive health care and to information and
education relating to sexual and reproductive matters at all levels, free of
coercion, discrimination and violence” (ibid., p. 37).39 In the draft Bill
38 October 30th 2001, hosted by Women’s Coalition M.L.A., Jane Morrice, and
Progressive Unionist M.L.A, David Ervine, to launch Sexton and Rossiter’s (2001) study
of the numbers and experiences of Irish women accessing abortion in Great Britain (The
Other Irish Journey: A Survey Update of Northern Irish Women Attending British Abortion
Clinics, 2000/2001). In April 2003, the Northern Ireland Women’s European Platform
(N.I.W.E.P.) and the Human Rights Centre of Queen’s University co-sponsored a conference on reproductive rights in Northern Ireland. The conference looked at abortion in terms
of the U.K.’s obligations under C.E.D.A.W. and in light of the upcoming report to the
C.E.D.A.W. Committee.
39 This language is drawn from Programme of Action of the International Conference on
Population and Development and in the Beijing Platform for Action agreed at the Fourth
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EILEEN V. FEGAN AND RACHEL REBOUCHE
of Rights and in discussing the clause, the N.I.H.R.C. has been careful
not to use language in a way that could be seen as liberalising the abortion law. In so doing, the reproductive healthcare clause falls short of
recognising the particularity of women’s position – both biologically and
socially – in relation to reproduction and thus fails to acknowledge the
human rights implications for women. Such recognition may have led to a
better understanding and perhaps even an endorsement of women’s agency
in reproductive choices. If the N.I.H.R.C. were to move towards public
appreciation of these issues, it would serve as an acknowledgement of the
anomaly of abortion law and practice as well as confront the statistical
evidence of the hardship suffered by women travelling to Great Britain
for terminations. Instead, the N.I.H.R.C. has not made an attempt to thoroughly justify its decision to make no comment on abortion or address the
pertinent human rights issues related to the subject.
Engaging in the issues around abortion in such a public manner may
indeed involve the N.I.H.R.C. in social contention.40 However, the avoidance of contention has not prevented the N.I.H.R.C. from taking a role
in other controversies. Other provisions of the consultation document also
dealt with controversial topics, most notably, the rights of re-integration for
ex-prisoners and the recognition of common law relationships for samesex couples (N.I.H.R.C., 2001, pp. 53, 60). The N.I.H.R.C. did not limit
these rights from the outset, as they did for reproductive healthcare, by
asserting it had no position on what protection of these rights might mean
in the future.
To take no position on the current anomalous legal situation could be
seen as taking a very strong position in favour of the status quo. This is not
necessarily to suggest that the N.I.H.R.C. should necessarily adopt a prochoice policy as such. As an unelected institution in a divided society, it
must give the appearance of neutrality to some extent in order to justify
and sustain its legitimacy and carry on its work. However, the climate
of intimidation preventing both the N.I.H.R.C. and pro-choice advocates
from speaking openly and honestly about this issue – discussed in greater
detail below – highlights perhaps more than any other the N.I.H.R.C.’s
need to consider its role in shaping Northern Irish culture. If it is merely
World Conference on Women. Several of the more recent international conventions and
resulting documents, such as the 1995 World Conference on Human Rights in Vienna,
reference the need to protect reproductive rights.
40 The extent of such contention can be imagined in respect of the reaction in some
quarters to the proposal to grant specific rights for women and girls. For instance, Waters
(2001) argues “those citizens have rights which, by virtue of being explicitly stated, are
superior to the rights of citizens described as men or boys”, highlighting a profound
(and unfortunately, culturally widespread) lack of understanding of either the systematic
disadvantage, biological needs or gendered experiences of women.
NORTHERN IRELAND’S ABORTION LAW
245
to reflect current cultural values, as its argument on abortion appears to
suggest, it has little hope of effecting long term and self-perpetuating
change in a mistrustful and defensive society. For the reasons asserted in
this paper, discussion around abortion has certainly never been an easy
task in Northern Ireland. It will inevitably involve an amount of heightened
tension and discomfort. As demonstrated by the fpaNI judicial review case,
when it comes to abortion, emotion and moralism can be stronger forces
than law or human rights in Northern Ireland. Yet, moral argument that
is constructed in pseudo-religious terms of ‘preserving foetal life’ without
any recognition that the denial of women’s agency is as much a moral
issue, with implications that merit more thorough examination.
Feminists and pro-choice activists in Northern Ireland must of course
work with the situation and the culture as it currently is – that is, they must
develop strategies to enable more women to exercise agency within this
silence. In this respect the N.I.H.R.C.’s endorsement of a right to reproductive healthcare can be put to work on two levels that are essential to
effect meaningful and lasting change for women. On the discursive level
it can be used to raise further awareness and promote discussion of the
private, reproductive experiences of women in a society that has been
traditionally consumed by more ‘masculine’ political and nationalistic
concerns. With the language and the freedom to (re)think and talk about
their reproductive lives, women can be empowered to contribute their ideas
to future policy and to the substance of the legal reforms required to
give meaning to this general and largely aspirational right to reproductive
healthcare. On the material level, it can be relied upon to claim better
and more equitable provision of reproductive health services throughout
Northern Ireland. Since, as is acknowledged by some medical professionals, terminations are recorded in some hospitals in Northern Ireland as
‘D&C’ (dilation and curettage) gynaecological procedures (McGleenan,
2000), the clause may encourage more doctors to conduct the procedure
on ‘health’ grounds. On this interpretation, the N.I.H.R.C.’s decision not
to risk the vociferous opposition of the volatile, but highly organised antiabortion lobby could potentially protect individual women and medics in
the above scenario.
As we have argued throughout, however, this ‘neutral’ strategy promises little in the way of shifting the debate to a more woman- (and rights-)
centered discussion. The decision to reserve comment on abortion in
order to maintain perceived public support is thus less easily defended.
Just as feminists or pro-choice advocates cannot claim to speak for all
women, neither can human rights bodies, judges nor political representatives placate all manner of diverse opinions. But this does not make
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EILEEN V. FEGAN AND RACHEL REBOUCHE
silence on abortion the best default position from a human rights perspective. That the vocal ‘majority’ does not support women’s need for
reproductive choice – particularly in a context where open disclosure of
pro-choice views is so problematic – should be beside the point. Given
the physical and life consequences of denying abortion, a gender-balanced
conception of human rights must surely underscore respect for women’s
reproductive agency. The problem thus far has been that anti-choice groups
have effectively shaped the perception of the ‘minority’ needing protection exclusively in relation to the foetus. Without beginning a circuitous
and unhelpful discussion of the moral character of the foetus, it is worth
repeating that present legal structures both in the U.K. and Europe do not
confer a strong legal character on the foetus. Thus, the anti-choice groups’
insistence upon rights for ‘the unborn’ is not only without legal precedent
in the relevant jurisprudence, but also appears to be without substance in
the Northern Irish context where women have such limited rights regarding
abortion.
B REAKING THE S ILENCE : I NCORPORATING W OMEN ’ S E XPERIENCES
INTO S OCIAL AND L EGAL D IALOGUE
But how do feminists break though the cultural bulwarks that keep
everyone silent and women dispossessed of the social goods they have
helped create? In Northern Ireland much of the peace and human rights
movements were initiated and sustained by women, though the Nobel
prizes are given elsewhere (McCoy, 2000; Yuval-Davis, 1998; McWilliams, 1995). It is contended here that we must return to an experiencebased feminism that takes into account where women are in their societies
and the factors that push and pull their decisions. Elsewhere, Fegan (1999,
p. 263) has identified ‘subversive conformity’ as a strategy that individual
(and not necessarily feminist) women may use to overcome overwhelming
social and family pressure to participate in and maintain specific gender
roles. To all outward appearances they conform to cultural norms in
order to gain public acceptance, which critically, provides them with
the uncensored space to challenge them privately. This in turn gradually
weakens the hold of traditional gender expectations upon other women,
as contrary experiences are passed on, encouraging them to explore alternative beliefs and behaviours.41 To a large extent, women travelling to
41 In a qualitative study (Fegan, 1999, 2002) of 15 Canadian women’s abortion decision-
making, of the ten who terminated pregnancies, 32-year-old ‘Catherine’ was one of only
four who did not suffer feelings of trauma or regret afterwards. She explained:
NORTHERN IRELAND’S ABORTION LAW
247
Britain for abortions are already practicing this subversion. They still
need, however, to have their experiences legitimated. Ironically, the subtle
messages coming from the fpaNI’s neutral approach and the N.I.H.R.C.’s
silence on abortion may be doing the opposite, by further supporting the
taboo of speaking openly about the consequences and context of abortion decisions. Women, and especially those returning home to Northern
Ireland after an abortion, need safe spaces to share and pass on their experiences. Breaking this silence is vitally important in creating the momentum
necessary for change.
As Audre Lorde (1984, p. 42) explains, it is our fear of contempt,
censure and challenge that keeps women silent worldwide. Women and
women’s rights protagonists need to name and challenge our fears of
talking about abortion and reproductive control. We need to unmask and
unravel them, take them into daylight and see what happens. If we are
vocally and publicly pro-choice, not only on grounds of our health and
our indispensability to others, but out of respect for our agency, autonomy
and dignity, we might eventually after a heightened, but certainly more
honest, social debate, framing abortion issues in terms of the right to
make decisions affecting our bodies and lives. The courage and strength
to confront those fears – whatever they may be – lie in working together,
across the conditions that divide and separate women.
Differences Among Women in Northern Ireland
It is not our differences which immobilise us, but our silence (Lorde, 1984, p. 47).
As elsewhere, Northern Irish women are divided. There, the differences
are predominantly political background, economic and educational experience and religious denomination. The silence, which prevents most people
speaking openly and honestly about abortion, permeates the whole of
society, as witnessed by the difficulty of the Women’s Coalition42 in
declaring a policy on the issue. As a cross-community party, attracting
Actually my mother had said to me when I was in my early 20’s: ‘you know if you ever
get pregnant and don’t want to have the baby’ she said ‘just go and have an abortion
and not tell anybody’. I thought it was a good piece of advice. She didn’t seem to think
it mattered whether I was married or not. That kind of stuck in my mind and gave me
some freedom, that it wasn’t anybody’s business . . . it was my life.
None of the six women who did experience guilt, depression or other psychological
‘trauma’ had received similar advice.
42 See: http://www.niwc.org/. The Northern Ireland Women’s Coalition – the first
women’s political party in the U.K. – was elected to the Peace Talks and Forum for
Dialogue in 1996 on a platform of “produc[ing] an Agreement that all sections of the
community could feel they owned . . . through adherence to our core principles of Inclusion,
Equality and Respect for Human Rights”. N.I.W.C., “A New Voice for New Times” (Mani-
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EILEEN V. FEGAN AND RACHEL REBOUCHE
members with diverse backgrounds and religious affiliations, the Women’s
Coalition was aware that this highly controversial issue had the potential
to create dissent which might undo its other efforts at consensus-building
among differently situated women and at gaining support from a broad
base of voters.43 This concern led to a great effort to ensure a nonadversarial approach to drafting a ‘sexual and reproductive health’ policy
that was considered by many members as essential for a women’s party.
Encouraged by the earlier success of its inclusive approach on other difficult issues, such as policing, it set up a diverse and self-selecting working
group to discuss broader reproductive matters, including the provision of
sex education and contraceptives for young people. This enabled the Coalition to establish a critical space within which to reach broad agreement on
common concerns, such as access to information. Once agreement had
been reached on these less emotive issues, it became less challenging to
discuss abortion. The motion eventually passed that at the annual conference in November 2000 reflected ten months of discussion, deliberation
and negotiation. However, the party’s commitment to engaging in a discussion that was inclusive of divergent views meant that when the D.U.P.
brought the Assembly motion opposing the extension of the 1967 Abortion
Act (in June 2000), the Coalition was unable to contribute an agreed policy,
as the drafting process was not by then complete.
The Women’s Coalition adopted a baseline pro-choice policy supplemented with a positive approach to the problem of crisis pregnancy. It
consequently developed a comprehensive reproductive health strategy to
supplement the baseline protection of women’s choice with a commitment
to work towards securing the material conditions (for example, access to
education and contraception) that would enable a reduction in the need
for abortion services generally. In this way the Women’s Coalition, which
had previously censored itself against discussing abortion in public forums,
managed to accommodate the diversity of views among its members and
develop an agreed pro-choice policy. Whether the Women’s Coalition will
move this policy forward in the legislative arena is yet to be seen.
The Women’s Coalition’s response to abortion in a diverse political,
complex legal and restrictive cultural context is a practical acknowledgement of Lorde’s point: silence does not protect women of any background
or belief structure. All women suffer under conditions of socially mandated
silence, though perhaps in distinct and varying ways. Led by the Coalition
festo, 1998, Assembly Election). The party currently holds two seats in the (suspended)
Northern Irish Assembly.
43 We thank Elizabeth Byrne McCullough, Women’s Coalition Spokesperson for Reproductive and Sexual Health (and due to stand for election to the Assembly in 2003) for
sharing this information with us: November 2001.
NORTHERN IRELAND’S ABORTION LAW
249
example, advocates of women’s human rights and reproductive agency can
begin to break through that silence by listening to experiences of women
from different backgrounds rather than “hide behind the mockeries of
separations that have been imposed upon [them]” or behind labels not of
their own choosing (Lorde, 1984, p. 43).
Yet, in Northern Ireland like elsewhere, women are both vocal and
visible in the anti-choice movement, raising many difficult questions for
feminist scholars and activists alike. ‘Pro-life’ identified women need to
be engaged in this discussion as well. We may find many shared concerns
among apparently contradicting beliefs, due in part to widespread misunderstanding about the meaning of a ‘pro-choice’ position. Pro-choice is
not, as is often claimed to be a negation of motherhood or family life. It
is not pre-empting the decision of any woman faced with an unplanned
pregnancy. Rather, it is a necessary defence of those women who cannot
proceed with the birth of a child due to the damaging consequences for her
own life and that of any child she might produce. Women must make these
very difficult decisions, in light of the enormous responsibilities of childrearing. Most, perhaps due to what has been described as the conservative
ethos of Northern Ireland, will choose to continue pregnancies. Some,
however, will not make that choice, depending on their context and their
own beliefs and moral codes. This constituency of women, who travel to
England or seek ‘backstreet’ abortions, will continue to exist and, as has
been drawn to public attention at the Assembly level, continues to increase
(Rossiter and Sexton, 2001).
A Moral Reconceptualisation of the Right to Life
It has been long argued that in order to secure the approval and consensus
of the people, the law and now particularly human rights law must be
sensitive to the culture in which it is to be applied. As has been noted previously, in Northern Ireland, like the Republic, there is a particular cultural
and religious attachment to the conceptions of motherhood, birth and
sexuality (Ward, 1983). Paradoxically rights for ‘the unborn’, constructed
in terms only of preventing women terminating pregnancies they cannot
cope with, are considered, even by feminists, as the central moral position.
As shown above, pro-choice advocates can develop equally potent moral
arguments along these lines and in a repeated public response that:
[w]hen we decide how to treat the foetus we are also necessarily making a decision about
how to treat the pregnant woman, and vice-versa, even if we do not actually acknowledge
that this is so (F.L.A.G., 1998, p. 7).
On a more daring approach, efforts to secure substantive rights for all
‘unborn children’ might paradoxically enable feminists to demonstrate
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EILEEN V. FEGAN AND RACHEL REBOUCHE
how rights might be reconceptualised as positive social, economic and
environmental obligations to be fulfilled by the state. A substantive, as
opposed to ideological commitment to ‘the unborn’ could mean anything
from the protection of our environment for future generations to the
provision of sufficient state funded childcare places to enable mothers to
continue education, training and paid employment. Such measures would
guarantee a better quality of life for future children and enable those
women currently opting out of motherhood for economic reasons or the
inability to cope physically or emotionally without support, to proceed
with wanted pregnancies. It is possible to envisage these developments
without enforcing childbirth on any pregnant woman, who knows best her
abilities and limitations in respect of the demands of motherhood. Doctors
in Northern Ireland seemingly do not want this responsibility, and those
in Great Britain who have acquired it through legislation, routinely pass
it back to women in practice. It is not hard to see why. Women carry and
nurture foetuses within their bodies, bear and nurture children within their
most intimate selves and in a context of the increasing responsibilities
of motherhood. They do this in the face of the realities of a free market
economy, which demands dependent-free availability, peak performance at
all times and is rewarded universally with lower pay relative to that of men.
Motherhood is one of the most physically, emotionally and financially
demanding – and irreversible – action a woman will take in her lifetime.
This reality has however been avoided in the Northern Irish context by
relying upon a 64-year-old case excusing a doctor from criminal conviction
for performing an abortion upon a 14-year-old victim of a brutal rape. By
making abortion legal in circumstances no one is quite sure about (‘physical or mental wreck’), refusing to clarify them or disclose how a woman
who might fit within them may obtain it, the responsibility for reform of
the law or constructive debate about its defects seem to fall to no public
institution.
If elected representatives, judges and drafters of human rights law
chose to acknowledge instead of ignore the biological facts of pregnancy
and the social aspects of motherhood, they might conclude on a moral
and human rights basis that “pregnant women are the most appropriate
persons to decide whether an abortion is right or wrong in the particular
circumstances of a pregnancy” (F.L.A.G., 1998, p. 6). The 7,000 Northern
Irish women who travelled to Great Britain exercised this moral responsibility against a background of institutional hostility and social censure
(Sexton and Rossiter, 2001). While it is still difficult to imagine many
or any of them speaking in a public forum – let alone a courtroom –
about their decisions and obstacles to exercising them, it is not so difficult to understand what their actions and their silence are saying. Perhaps
NORTHERN IRELAND’S ABORTION LAW
251
if abortion services in Great Britain were to be withdrawn from women
out of respect for the oft-declared particular Northern Irish ethos, those
institutions would be forced to listen.
C ONCLUSION
Postmodernist feminists argue that substantive gains for women achieved
through law reform are often negated by legal discourse itself. This has
brought attention to the issue of discourse – legal, social, moral, and
cultural discourse – and the possibility of feminist challenges to it. A
focus on discourse, the language (and other ways) in which law defines
itself, enables us to unravel the normative bases of law and to identify
the language needed to reshape them. Northern Irish abortion law reflects
and reinforces dominant cultural norms at the level of policy, practice
and procedure. At present, the strategies employed to reform reproductive
services have both failed and succeeded. In terms of the fpaNI case, the
court has reaffirmed the legality of abortion but at the expense of highlighting how an unworkable law should better serve women. As for the
Bill of Rights, the future of the consultation document in its present form
is uncertain, particularly the reproductive healthcare clause that, as noted,
has come under fire from the anti-abortion lobby. However, these strategies
still may provide much needed information as to the availability of abortion
services, the grounds upon which they can be accessed and those doctors
willing to refer women needing them. The new right to reproductive
health might at least symbolically, help prohibit the interference with the
provision of sex education, contraceptive advice and other reproductive
services. Yet, even if these practical goals are achieved, there remain more
profound issues to work upon.
In Northern Ireland many forms of cultural intimidation discourage
the disclosure of pro-choice views. This is evident in the strategy of the
fpaNI, the approach of the N.I.H.R.C., and the difficulties of the Women’s
Coalition in coming to a pro-choice policy. Despite progress on many
controversial issues, this leaves pro-choice feminism in Northern Ireland
‘feeling’ very much like an underground movement. The implications of
this need to be unravelled. Anti-choice campaigners are of course quite
visible in Northern Ireland, but arguably less so and to a much less threatening level than those in the U.S.A. or Canada, for example, where there
has developed a strong pro-choice movement and discourse. Apart from
the largely visual protests organisations like fpaNI have had to endure,
they are arguably much less dangerous than the faceless, nameless blanket
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EILEEN V. FEGAN AND RACHEL REBOUCHE
of resistance we have come implicitly to expect in response to ideas of
women’s reproductive control.
Despite the worldwide interest and celebration of the progress Northern
Ireland has made towards becoming a peaceful and democratic society,
there remains a deep-rooted culture of ‘opinion by default’, maintained
by implicit understandings of what can and cannot be said. The ‘whatever
you say, say nothing’ mentality is arguably connected with fear; fear of
censure, ostracisation and violence. Feminists can encourage women to
come together to break the silence with a sense of collectivity and purpose.
This is not to suggest that this is an easy task or will produce visible
benefits in the short term.
It would seem that even if we choose to stay silent about abortion and
women’s agency as a controversial issue on cultural grounds, there are
already signs that this largely patriarchal, culture will not endure indefinitely. Women and men are expressing attitudes that differ from those
traditionally identified with Northern Ireland: there is a growing secularisation of society, men and women are rethinking gender roles; and sexual
mores are changing (Dowds, Robinson, Gray and Heenan, 1999). What
seems preferable to the slower process of generational change is a more
self-conscious and engaging process of cultural development, directed by
the values of equality and dignity and not by the otherwise inevitable crisis
management.
R EFERENCES
Artexaga, B., Shattering the Silence: Women, Nationalism and Political Subjectivity in
Northern Ireland (New Jersey: Princeton University Press, 1997).
Barnett, H., Introduction to Feminist Jurisprudence (London: Cavendish, 1998).
Beale, J., Women in Ireland: Voices of Change (Basingstoke: Macmillan, 1986).
Bridgeman, J. & Millns, S., Feminist Perspectives on Law: Law’s Engagement with the
Female Body (London: Sweet & Maxwell, 1998).
Boyd, S., “Some Post-Modernist Challenges to Feminist Analyses of Law, Family and
State: Ideology and Discourse in Child Custody Law”, Canadian Journal of Women and
the Law 10 (1991), 79–92.
Conaghan, J., “Reassessing the Feminist Theoretical Project in Law”, Journal of Law and
Society 27 (2000), 351–385.
Cook, R., “Women’s International Human Rights Law: The Way Forward”, Human Rights
Quarterly 15 (1993), 230–261.
Dickson, B., “The European Convention in Northern Irish Courts”, European Human
Rights Law Review 5 (1996), 496–510.
Dowds, L., Robinson, G., Gray, A. & Heenan, D., Northern Ireland Life and Times
Research Update (Belfast: N.I.L.T., 1999).
Edgerton, L., “Public Protest, Domestic Acquiescence: Women in Northern Ireland”, in
Caught Up in the Conflict: Women’s Responses to Political Strife, eds. R. Ridd & H.
Callaway (London: Macmillan, 1986).
NORTHERN IRELAND’S ABORTION LAW
253
Family Planning Association Northern Ireland (fpaNI), Towards Better Sexual Health: A
Survey of Sexual Attitudes and Lifestyles of Young People in Northern Ireland (London:
fpa, 2002), ISBN 1 899194 47 9.
Fegan, E.V., “ ‘Ideology’ After ‘Discourse’: A Re-conceptualisation for Feminist Analyses
of Law”, Journal of Law and Society 23/2 (1996a), 173–197.
Fegan, E.V., “ ‘Fathers’ Foetuses and Abortion Decision-Making: The Reproduction of
Maternal Ideology in Canadian Judicial Discourse”, Social and Legal Studies 5/1
(1996b), 75–93.
Fegan, E.V., “Subjects Of Regulation / Resistance? Post-modern Feminism and Women’s
Agency in Abortion Decision-making”, Feminist Legal Studies VII/3 (1999), 241–273.
Fegan, E.V., “Recovering Women: Intimate Images and Legal Strategy”, Social and Legal
Studies 11/2 (2002), 155–183.
Feminist Legal Action Group (F.L.A.G.), “Reproductive Control: A Condition of Women’s
Equality and Freedom”, submission to the (Irish) Interdepartmental Working Group on
Abortion (March 1998).
Fletcher, R., “Post-colonial Fragments: Representations of Abortion in Irish Law and
Politics”, Journal of Law and Society 28 (2001), 568–589.
Fox, M. & Murphy, T., “Irish Abortion: Seeking Refuge in a Jurisprudence of Doubt and
Delegation”, Journal of Law and Society 19 (1992), 454–466.
Francome, C., Gynaecologists and Abortion in Northern Ireland (London: Colin Francome, 1994).
Fraser, A.S., “Becoming Human: The Origin and Development of Women’s Human Rights
Law”, Human Rights Quarterly 21 (1999), 853–906.
Furedi, A., ed., The Abortion Law in Northern Ireland: Human Rights and Reproductive
Choice (Belfast: Family Planning Association Northern Ireland, 1995).
Hennessy, R., Materialist Feminism and the Politics of Difference (New York: Routledge,
1993).
Hennessy, R. & Ingraham, C., eds., Materialist Feminism: A Reader in Class, Difference,
and Women’s Lives (New York: Routledge, 1997).
Higgins, T.E., “By Reason of Their Sex’: Feminist Theory, Postmodernism, and Justice”,
Cornell Law Review 80/6 (1995), 1536–1594.
Kingston, J., Whelan, A. & Bacik, I., Abortion and the Law (Dublin: Round Hall, Sweet
and Maxwell, 1997).
Lee, E., Abortion, Ethics and the Law: Issues for the New Millennium (London: Pro-Choice
Forum, 1998).
Lorde, A., “The Transformation of Silence into Language and Action”, in Sister Outsider:
Essays and Speeches (Freedom, CA: The Crossing Press, 1984).
McCoy, G., “Women, Community and Politics in Northern Ireland”, in Gender, Democracy
and Inclusion in Northern Ireland, eds. C. Roulston & C. Davies (New York: Palgrave,
2000).
McGleenan, T., “Abortion Law in Northern Ireland: Options for Reform”, The Northern
Ireland Forum for Ethics in Medicine and Health Care 1/2 (2000), 59–89.
McLaughlin, E., “Women and the Family in Northern Ireland: A Review”, Women’s Studies
International Forum 16/6 (1993), 553–568.
McWilliams, M., “Struggling for Peace and Justice: Reflections on Women’s Activism in
Northern Ireland”, Journal of Women’s History 6/4/7 (1995), 13–39.
MacKinnon, C., Toward a Feminist Theory of the State (Cambridge & London: Harvard
University Press, 1989).
Montgomery, P. & Davies, C., “A Woman’s Place in Northern Ireland”, in Social Attitudes
in Northern Ireland 1990–1991, eds. Stringer and Robinson (London: H.M.S.O., 1992).
254
EILEEN V. FEGAN AND RACHEL REBOUCHE
Northern Ireland Abortion Reform Association (N.I.A.L.R.A.), Abortion in Northern
Ireland, The Report of an International Tribunal (Belfast: Beyond the Pale, 1989).
Northern Ireland Human Rights Commission, Making a Bill of Rights for Northern Ireland:
A Consultation by the Northern Ireland Human Rights Commission (September 2001),
ISBN 1 903681 18 9.
Northern Ireland Human Rights Commission, The Bill of Rights: Women – A Discussion
Pamphlet (January 2001), ISBN 1 903681 12 X.
Porter, E., “Participatory Democracy and the Challenge of Dialogue across Difference”, in
Gender, Democracy and Inclusion in Northern Ireland, eds. C. Roulston & C. Davies
(New York: Palgrave, 2000).
Porter, E., “Identity, Location, Plurality: Women, Nationalism and Northern Ireland”, in
Women, Ethnicity and Nationalism, eds. R. Wilford & R. Miller (London: Routledge,
1998).
Sexton, M. & Rossiter, A., The Other Irish Journey: A Survey Update of Northern
Irish Women Attending British Abortion Clinics, 2000/2001 (London: Marie Stopes
International, 2001).
Sheldon, S., “Who is the Mother to Make the Judgement? Constructions of ‘Woman’ in
the Abortion Act”, Feminist Legal Studies 1 (1993), 3–22.
Smart, C., “Feminism and Law: Some Problems of Analysis and Strategy”, International
Journal of Law and Sociology 14/2 (1986), 109–123.
Smart, C., Feminism and the Power of Law (London: Routledge, 1989).
Smart, C., “The Woman of Legal Discourse”, Social and Legal Studies V/1 (1992), 29–44.
Smyth, L., “Narratives of Irishness and the Problem of Abortion: The X case 1992”,
Feminist Review 60 (1998), 61–83.
Standing Advisory Commission on Human Rights (S.A.C.H.R.), “Abortion Law in
Northern Ireland: The Twilight Zone” (18th Annual Report: 1993).
Standing Advisory Commission on Human Rights (S.A.C.H.R.), “Abortion Law on
Remand” (19th Annual Report: 1994).
Vogel, L., Woman Questions: Essays for a Materialist Feminism (London: Routledge,
1995).
Ward, M., Unimaginable Revolutionaries. Women and Irish Nationalism (London: Pluto
Press, 1983).
Ward, M., “Motherhood in Northern Ireland”, in Motherhood of Ireland, ed. P. Kennedy
(Cork: Mercier Press, 2003).
Waters, J., “Women More Equal than Men in N.I. Plan”, The Irish Times (November 12th
2001).
Yuval-Davis, N., “Gender and Nation”, in Women, Ethnicity and Nationalism, eds. R.
Wilford & R. Miller (London: Routledge, 1998).
Yuval-Davis, N., Gender and Nation (London: Sage, 1997).
School of Law
Queen’s University
29 University Square
Belfast BT7 1NN
UK
E-mail: {e.fegan;r.rebouche}@qub.ac.uk