by Rachele Bizzari*
On 7th December 2022, the Supreme Court of the United Kingdom delivered its judgment in Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32, ruling in favor of buffer zones around healthcare facilities to protect both patients and staff from pro-life campaigners.
Until recently, Northern Ireland was governed by the Offences Against Person Act of 1861, which made it a criminal offence for a woman to end an unwanted pregnancy and for any other person to perform an unlawful abortion. According to judicial case law, abortion was allowed only if a woman’s life was at risk or there was a risk of permanent or serious damage to her physical or mental health. In October 2019 abortion was legalised, and a new legal framework came into effect in 2020, thus implementing the United Kingdom’s international obligations under the Committee on the Elimination of Discrimination against Women (CEDAW).
On 24th March 2022, the Northern Ireland General Assembly passed a Bill to designate safe access zones adjacent to the facilities where abortion services are provided. The devolved legislature’s concern was to guarantee women’s access to abortion services by avoiding exposure to undue pressure from anti-abortion protesters and demonstrators stationed at entrances to health facilities. Accordingly, clause 5(2)(a) of the Bill makes it a criminal offence «to do an act in a safe access zone with the intent of, or reckless as to whether it has the effect of – (a) influencing a protected person, whether directly or indirectly» – a protected person being either a patient, accompanying persons or staff member.
The Attorney General for Northern Ireland questioned whether such clause was outside the legislative competence of the Northern Ireland Assembly, as it caused a «disproportionate interference» with freedom of conscience, speech and assembly protected by articles 9, 10 and 11 of the European Convention on Human Rights. On the contrary, the Supreme Court unanimously held that clause 5(2)(a) of the Bill is compatible with those Convention rights, whose exercise is merely restricted in space, and therefore not outside the legislative competence of the Northern Ireland Assembly.
The Court recognized how access to abortion services in Northern Ireland is heavily hindered by protesters and demonstrators. Indeed, data from the 2018 CEDAW report show how anti-abortion harassment and intimidation, which encompass a wide range of activities such as praying, holding bibles, handing out inaccurate and emotionally charged leaflets, is likely to draw public attention to the site and to the act, thus jeopardizing privacy and confidentiality of women who seek abortion, already under great physical and emotional stress.
Thus, the Supreme Court ruling makes Northern Ireland the first country in the United Kingdom to have safe zones legislation. However, similar laws are currently under work in both England and Wales – whose Public Order Bill is at present in report stage in the House of Lords – and Scotland, where in early 2022 Scottish Greens MSP Gillian Mackay proposed the Abortion Services Safe Access Zones Bill. In such a perspective, the decision sets an important precedent for the protection of abortion rights throughout the United Kingdom.
Although the judgment gives recognition to non-legal barriers to abortion services, it should be noted thataccess to abortion in Northern Ireland remains an issue. The Department of Health has not commissioned abortion services and has not ensured healthcare workers with both training and funding, thus forcing women to resort to alternative routes. According to data provided by Amnesty International UK, between 2020 and 2021 more da 150 women travelled to other parts of the United Kingdom to perform an abortion. Also, low-income women may have turn to illegal methods of ending their pregnancy, including the purchase of abortion pills online – a practice widely spread before decriminalization. However, on 24th October 2022 the Secretary of State for Northern Ireland has announced that the UK Government will commission abortion services after the failure of the devolved Department of Health to guarantee safe abortion access to young girls and women across Northern Ireland.
*PhD Candidate, University of Pisa
