In many countries, the right to abortion is controlled by decades-old laws to the detriment of women. Until recently that was the case in Northern Ireland where the issue of abortion has long been divisive and controversial.

For generations, the laws that covered the issue in Northern Ireland were the Offences Against the Person Act 1861 and later the Criminal Justice (Northern Ireland) Act 1945. Other than in narrowly drawn exceptions, these laws determined that it was a criminal offence to have or perform an abortion. This meant abortions were generally allowed only if a woman's life was at risk or there was a risk of permanent and serious damage to her mental or physical health.

When the 1967 Abortion Act liberalised access to abortion prior to fetal viability elsewhere in the UK, Northern Ireland was excluded for fear of provoking religious and political controversy. The result was that women from Northern Ireland were forced to seek solutions outside the legal and healthcare systems or to access abortion services elsewhere.

As is often the case, this restrictive legal framework impacted most negatively on those in already marginalised circumstances – especially those that could not afford to, or for other reasons were unable to, travel.

As well as extensive commitment from grassroots campaigners, reform of abortion law in any national context requires in-depth research on the regulation of reproduction, human rights, constitutional law and healthcare law and policy. In this context, 2019 was a turning point for Northern Irish reform.

This key area of legal research was led by the university's Professor Sheelagh McGuinness - alongside Dr Jane Rooney (University of Bristol from 2016 to 2020). Together, their research has supported the successful campaign to decriminalise abortion in Northern Ireland and helping to realise the demands of decades of activism and campaigning. It has also directly influenced legislation that has enabled Northern Irish women to access safe and local abortion services for the first time.

McGuinness’ previous research in this area had demonstrated how abortion solely as an issue of ‘moral’ concern obscures understanding it as a fundamental part of reproductive healthcare and a human rights entitlement.  

Rooney’s research highlighted that under the Northern Ireland Act 1998, which implemented devolution in Northern Ireland, Northern Irish legislation must comply with human rights. She also emphasised that the domestic legal framework does not prevent the UK government from legislating for Northern Ireland to ensure compliance with international human rights obligations.

During 2019, McGuinness and Rooney drew on their research to provide expert advice to MPs on abortion law in Northern Ireland and its human rights implications. Most crucially, they provided detailed advice to Stella Creasy MP, who in July 2019 tabled a successful amendment that became Section 9 of the Northern Ireland (Executive Formation etc) Act 2019. 

When the amendment was passed, it decriminalised abortion in Northern Ireland and required the Secretary of State for Northern Ireland to make provision for abortion services.   The Abortion (Northern Ireland) Regulations 2020 subsequently came into force on 31st March 2020, removing the threat of prosecution for women and providers working within formal healthcare services. 

However, with ongoing failures over the commissioning of abortion services, the work goes on. 

The majority of people believe that abortion is already fully decriminalised in the rest of the UK*. This is a common misconception that conceals the ongoing existence of archaic UK abortion laws that are damaging for many women in England, Scotland and Wales. 

When the UK 1967 Abortion Act legalised terminations prior to fetal viability (provided that certain conditions were met), the 1861 Offences Against the Person Act that criminalised abortion wasn’t simultaneously repealed. This 19^th century legislation continues to criminalise women and pregnant people, often in vulnerable situations, who end pregnancies outside the conditions laid down by the Abortion Act.

It also risks deterring them from seeking aftercare for fear of repercussions. At the same time, it hampers the ability of healthcare professionals to provide high quality, supportive care. 

While these cases often don’t come to court, police in England and Wales have still pursued a small but significant number of cases of procuring an illegal abortion. These investigations have been shown to cause significant distress and harm.

In one case in 2021, a teenager was investigated under the 1861 Offences Against the Person Act, which says it is unlawful to procure a miscarriage using ‘poison’, ‘an instrument’ or ‘other means whatsoever', and that those found guilty can be jailed for life.

"The15-year-old girl who had an unexplained early stillbirth was subjected to a year-long criminal investigation that saw her text messages and search history examined.  Police dropped the case after a coroner concluded the pregnancy ended because of natural causes."  The Observer, July 2022 

*Royal College of Obstetricians and Gynaecologists and the Faculty of Sexual & Reproductive Healthcare: Joint Statement on Decriminilisation of Abortion 2022.

The ongoing campaign to reform abortion law in the UK is focused on shifting the debate away from considering abortion as a criminal law issue and locating it within a health law framework.  

Professor Sally Sheldon of the University of Bristol has contributed legal expertise, with her research informing two House of Commons Private Members Bills proposed by Dame Diana Johnson MP (2017-2019) that played a fundamental role in raising the possibility of decriminalisation. 

These Bills demonstrated that a properly framed reform - where abortion is no longer the focus of a specific criminal offence in the UK, but is still subject to strict legal, regulatory and professional controls in the same way as other medical procedures - was capable of commanding broad support.

The Bills passed their first readings by 172 to 142 votes and 208 to 123 votes respectively. The second Bill was sponsored by MPs from five political parties. 

In 2019, following debate of the Bills, the Royal College of General Practitioners issued a statement in support of decriminalisation, and both the Labour and Liberal Democratic Party manifestos committed to decriminalisation for the first time.

The second Bill was also supported by a wide range of other influential groups, including the British Medical Association, the Royal College of Obstetricians and Gynaecologists, the Royal College of Midwives, the British Pregnancy Advisory Service and the Family Planning Association.   

Duffy, McGuinness, Rooney, Pillai and Sheldon have worked as part of a wide coalition of academics, activists, campaigners, media, politicians, doctors, gynaecologists, midwives and more to shape a favourable climate and build momentum for legal change in Northern Ireland, the UK and beyond.

Duffy's work with Lawyers for Choice was an example of how a relentless campaign of public legal education across a number of media - be it in person, in writing, or via widespread social media engagement - could make the noise required to bring attention to an archaic legal system which was putting women's and pregnant people's safety at risk.

At the same time, it helped put the spotlight on the work of researchers like McGuinness, Rooney and Sheldon to ensure that decision makers and advocates alike understood and were aware of what was needed to make real change happen.

There are many similar stories around the world. In Argentina, the ¡Aborto legal ya! (Legal Abortion Now) campaign which led the legalisation of abortion in the country in 2021 took the form of a marea verde (or ‘green wave’) of feminist campaigners who took to the streets to protest.

One of the hallmarks of the campaign was its successful raising of public and political raising awareness of the socioeconomic divide in the country. There are clear parallels with the US, where it is widely accepted that people of colour, the LGBTQ+ community, undocumented immigrants, disabled people, and people living in poverty will be the first and worst hit by the fall of Roe.  

A new President and the overturning of Roe signals dark days ahead for women and pregnant people in the US. But the international abortion and reproductive justice movements show that people, supported by robust legal research, stand strongest when they are united. 

The struggle for reproductive justice and a more equitable society for women continues.  So too does the research.

The academics featured in this article belong to the Centre for Health, Law, and Society at the University of Bristol, a top three UK university for excellence in legal research (REF 2021).

Members of the Centre examine the diverse roles for law and governance as mechanisms to address health and well-being, looking across society and governmental sectors at broad-ranging questions including regulation of health care, reproductive justice, mental health and well-being and public and global health.