Advocating Abortion Rights in Northern Ireland

Introduction

Feminist engagement with legal reform and strategic litigation typically acknowledges the social and cultural limitations of such work, in privileging legal expertise and legal narrative over the expertise and experience of women (Roa and Klugman, 2014; see especially Smart, 1989; see also West, 2009). The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), by contrast, arguably faces these limitations in reverse; whereas the Convention is plagued by reservations and a lack of sanctions for the non-compliance of state parties (Cook, 1990), it is distinguished for its cultural work in affirming women’s rights and equality in local (Merry, 2006) and global (Joachim, 2007) settings. This analysis would suggest that the best hope for securing progressive cultural and legal change in domestic settings with restrictive abortion regimes is to utilize both domestic and international approaches.

The article considers the interplay of domestic legal and international human rights strategies in pro-choice advocacy in Northern Ireland. The article begins by discussing the strategic litigation pursued by the Family Planning Association Northern Ireland (FPANI) through the Northern Irish courts since 2002 to compel the Department of Health, Social Services and Public Safety (hereinafter the Department of Health) to bring forward guidance for medical professionals on the lawful provision of abortion in the jurisdiction. While the litigation has been successful in formal legal terms, embedded cultural and political resistance to reform has eroded ostensible legal gains. The article then turns to the initiative by Alliance for Choice, the FPANI and the Northern Ireland Women’s European Platform (NIWEP) in 2010 requesting the CEDAW Committee to conduct an inquiry into access to abortion in the jurisdiction under the CEDAW Optional Protocol. Unlike the FPANI’s strategic litigation, the CEDAW inquiry request has pursued an avowedly rights-based approach. The positive cultural impact of the inquiry request is clearest in underpinning valuable new alliances between previously disparate pro-choice organizations, but the article also critically reflects on the evident cultural limitations of the CEDAW initiative, in particular, in failing to secure the support of mainstream human rights organizations in Northern Ireland. In marked contrast to the CEDAW inquiry request, the 2013 Draft Guidance issued by the Department of Health for medical professionals on the lawful provision of abortion in the jurisdiction motivated robust opposition from human rights non-governmental organizations (NGOs) operating in Northern Ireland, who were alarmed by the manifest compliance issues with civil and political rights guaranteed under the European Convention on Human Rights (ECHR) presented by Draft Guidance. The article therefore argues that the local cultural possibilities of CEDAW must be understood as embedded within the broader structural gendered limitations of international human rights law and persistent regressive gendered sub-themes within mainstream human rights advocacy. Further, the utilization of CEDAW to support domestic litigation strategies may offer a tentative coming together of advocacy for both cultural and legal changes, in Northern Ireland and beyond.

Abortion in Northern Ireland: Law, Culture and Strategy

Obstacles to abortion law reform in Northern Ireland are often framed in terms of ‘the cultural problem’ (Fegan and Rebouche, 2003). Invocations of Northern Ireland’s ‘distinctive cultural values’ (Smyth, 2006), erroneously defined as cross-community opposition to abortion, are never distant from anti-choice demands to maintain the status quo. Smyth (2006), in particular, has unpicked the strategy of anti-choice groups in Northern Ireland to portray opposition to abortion as a ‘cultural norm’ that unites both sides of the ethnic divide in an otherwise deeply divided society and that distinguishes Northern Ireland from the rest of the United Kingdom. Political and legal strategies of anti-choice groups pursue and maintain official recognition for these claimed cultural norms. The efficacy of the strategy is vindicated by the aversion of the Northern Ireland Legislative Assembly (hereinafter the Assembly) to legal reform on abortion and the continued unwillingness of the UK government to extend the 1967 Abortion Act to Northern Ireland, motivated by claimed submissiveness to the will of the people of Northern Ireland. The extent to which deference to Northern Ireland’s perceived distinctive cultural values shapes local and broader debates on the jurisdiction’s abortion law becomes evident in the tone and language of both the Assembly and UK government. Throughout the Assembly’s first debate on abortion, in 2002, the portrayal of opposition to abortion as an issue uniting ‘Protestant, Catholic and dissenter’ was a recurring motif. More recent Assembly debates have attempted to pivot also to concern for the ‘mother’s welfare’, but the narrative of unified cross-community opposition to abortion remains firm. Moreover, the UK government’s response to repeated examination from the CEDAW Committee shows little divergence from its position in 1985:

Since the introduction of direct rule in 1972 the view has been taken not to introduce a measure to change the abortion laws in Northern Ireland unless it is likely to command broad support among the people of the Province. Such support does not exist at present. (Minister Nicolas Scott, reproduced in Furedi, 1995: 97)

In broad terms, the result of Northern Ireland’s separate trajectory has been to make the access to lawful abortion in the jurisdiction marginally more liberal than in the Republic of Ireland, where abortion is available only when the pregnant woman’s life is at risk (Protection of Life During Pregnancy Act 2013; Murray, 2016), but significantly more restrictive than the regime introduced to England, Scotland and Wales by the Abortion Act 1967. Further, the Northern Irish jurisprudence has provided only an unclear and unsatisfactory legal framework for women and medical professionals (McGleenan, 1994; Standing Advisory Committee on Human Rights, 1993).

Against the backdrop of a persistent lack of legal clarity and legislative inaction to remedy the lack of clarity, strategic litigation led by the FPANI has emerged as a key plank in pro-choice advocacy. In 2002, the FPANI sought a declaration from the Northern Ireland High Court that the Minister for Health had acted unlawfully in failing to provide advice and guidance to women and clinicians in Northern Ireland on the availability and provision of services for the termination of pregnancy (Family Planning Association of Northern Ireland, Re an application for Judicial Review, 2003). While the FPANI’s legal action was initially unsuccessful, the Northern Ireland Court of Appeal allowed the association’s appeal, ultimately imposing a duty on the Department of Health to provide guidance to medical professionals stating the law in relation to the lawful termination of pregnancy (The Family Planning Association of Northern Ireland v. Minister for Health, Social Services and Public Safety and others, 2004). Draft Guidance was finally published for consultation in July 2008 (Department of Health, 2008) and formally issued by the Department of Health in 2009 (Department of Health, 2009). Despite being broadly welcomed by the medical profession as offering much needed clarity to medical practitioners, ¹ the Guidance was successfully challenged in a judicial review brought by the Society for the Protection of the Unborn Child (SPUC; Society for the Protection of Unborn Children, Re Judicial Review, 2009), on the grounds that the provision for conscientious objection was unclear, ² and that the section requiring the provision of non-directive counselling to women considering abortion, which could include the option of procuring abortion in another jurisdiction, but who did not meet the threshold for lawful abortion, was ‘arguably unlawful’ (Society for the Protection of Unborn Children, Re Judicial Review, 2009: para 37). The other five grounds of the judicial review were all rejected, confirming the broad legality of 2009 document (Society for the Protection of Unborn Children, Re Judicial Review, 2009: para 48). The offending provisions of the 2009 Guidance were promptly withdrawn and a change in the responsible minister led to the entire document being withdrawn in 2010. An entirely revised, and highly problematic, draft was published in 2013 (the draft and the response is discussed further infra). Guidance was finally published in 2016 (Department of Health, 2016) and the content more closely reflects the 2009 Guidance.

Despite the court order, there has been substantial opposition from the political parties in Northern Ireland to the issuance of Guidance. ³ Moreover, in 2014, the Minister for Justice David Ford, member of the Alliance Party of Northern Ireland, initiated a public consultation on liberalizing access to abortion in the jurisdiction, on the grounds of fatal foetal abnormality and in cases of pregnancy resulting from sexual crime (Department of Justice, 2014 ). The Minister’s ultimate recommendation to change the law to permit abortion in the cases of fatal foetal abnormality, but to leave it unchanged in the case of sexual crime, has been roundly rejected by local political parties and has led to further litigation (this litigation is discussed further infra in the concluding sections). The position of the local political parties means that the prospect of legislative change from the Northern Ireland Assembly remains distant.

Against this backdrop, the efficacy of the FPANI’s strategic litigation has been a central theme in related scholarship, and its efficacy as a tool to secure reform has been weighed in terms of both its legal and cultural implications. Capper (2003), for example, questions the appropriateness, in terms of separation of powers and the appropriate function of judicial review, of calling on the courts to play such an active role in policymaking. Hewson’s (2004) overtly feminist doctrinal intervention expresses concern at the further empowerment of the courts, over and above medical professionals, in abortion decision-making. Informed by the experience of the implementation of the 1967 Abortion Act in Great Britain, where medical discretion has been exercised in a largely progressive way, Hewson views medical discretion as an avenue for greater facilitation of women’s agency in abortion decision-making in Northern Ireland. Conversely, Fletcher (2005) views the litigation and its vindication by the Northern Ireland Court of Appeal not as limiting medical discretion, but instead as ensuring state accountability for the deficiencies of the existing regime of accessing abortion. Where Fletcher and Hewson agree, however, is in their disappointment that a more overtly rights-based argument was not pursued in the FPANI litigation:

The human rights arguments were poorly developed in the judgements with the judges simply dismissing the possibility that Convention rights assisted the applicant’s case when they acknowledged them at all. This was partly because the F.P.A.N.I. did not pursue a strong rights argument. (Fletcher, 2005: 132; see also Hewson, 2004)

Bloomer and Fegan (2013: 109) weigh the efficacy of the FPANI strategic litigation in slightly different terms, not so much in the specific framing of the legal arguments, but more in terms of what they identify as the ‘religious and cultural bias at an institutional level’ that has manifested in the continued defiance of the ultimate court order for Guidance. The evidence they offer of wilful disregard of the rule of law by the individuals and institutions charged with upholding it in respect of abortion in the jurisdiction is compelling: the continued defiance of the court order by successive Ministers for Health; the proactive attempts of the Attorney General of Northern Ireland to close the Marie Stopes Clinic in Belfast, in a highly questionable exercise of his powers; and the actions of the responsible civil servants in drafting the Guidance in such a way as to narrow the terms of access to lawful abortion in the jurisdiction (Bloomer and Fegan, 2013). They further cite the failure of the Court hearing the SPUC challenge to the 2009 Guidance (Society for the Protection of Unborn Children, Re Judicial Review, 2009) to consider, despite prompting from the FPANI counsel, the judgment of the European Court of Human Rights Open Door decision on the protection afforded to the dissemination of abortion services under the Convention’s Article 10 right to freedom of information (Open Door and Dublin Well Woman v. Ireland, 1992) as evidence of embedded resistance to a rights framing of abortion in Northern Ireland. The analysis of Fegan, Rebouche and others points forcefully to the importance of ongoing extralegal challenges to ‘the cultural problem’ in order to effect meaningful change in the jurisdiction.

Law and litigation are embedded within important cultural frameworks that shape and determine the everyday interpretation and application of those laws (Cover, 1983). A practical example of this cultural specificity is the contrast between the liberal interpretation of the 1967 Abortion Act by medical practitioners in Great Britain and the conservatism of their Northern Irish counterparts, even in contexts such as Northern Health and Social Services Board v. A and others (1994), where the abortion sought by A was expressly permitted by the Northern Ireland High Court. Side (2006) similarly questions whether law and legal reform in Northern Ireland (either through litigation strategies or legislative change) have the power to bring about the necessary recognition and affirmation of women’s agency and autonomy. The common concern throughout this literature, therefore, is the extent to which litigation strategies, such as that adopted by the FPANI in the judicial review proceedings, challenge dominant conservative cultural frameworks and give voice to countercultural frames of women’s equality and autonomy.

Such debates are not, of course, unique to Northern Ireland. They reflect much longer running debates core to feminist legal theory and strategies to secure reform (see especially, Smart, 1989). Nevertheless, context matters, and the particular Northern Irish manifestation of these debates and tensions constitutes a very real challenge to pro-choice advocacy in Northern Ireland, where the prospect of legislative reform is distant and state institutions and political leadership appear willing to flout court orders.

The Turn to CEDAW

It is against a backdrop of recognized legal, cultural and practical limitations of strategic litigation in Northern Ireland that the particular appeal and advantage of the CEDAW inquiry procedure is best understood. CEDAW was adopted in 1979, and the CEDAW Committee established to monitor its implementation, in response to the identified gendered shortcomings of the human rights canon (Bunch, 1990; Charlesworth and Chinkin, 2000; Cook, 1990). The continuing problems of enforcement of CEDAW are, however, manifold and well documented. As Sally Engle Merry observes: ‘CEDAW is law without sanctions’ (2003: 943). The United Kingdom has faced, and faced down, repeated challenges by the CEDAW Committee to the UK government about state non-compliance with the Convention’s obligations, due to highly restrictive regime of access to abortion in Northern Ireland. The CEDAW Committee has made these challenges throughout its examination of the 1999, 2008 and 2013 UK state party periodic reports to the Committee. The United Kingdom’s consistent defiance of the Committee’s recommendations evidences broader problems of under-enforcement of women’s human rights within the international human rights system. It is for these reasons that CEDAW is often considered more significant for the cultural work that it does:

Human rights law is itself primarily a cultural system. Its limited enforcement mechanisms mean that the impact of human rights law is a matter of persuasion rather than force, of cultural transformation rather than coercive change. Its documents create new cultural frameworks for conceptualizing social justice. (Merry, 2006: 16)

The inquiry request was motivated, implicitly and explicitly, by the recognized legal and cultural limitations of the FPANI litigation, but also in the hope that it might advance that litigation and its efficacy. The inquiry request offered an opportunity to prompt more positive developments in respect of the Guidance but also to bring closer international scrutiny to the broader human rights compliance issues raised by Northern Ireland’s restrictive abortion regime. (Even if successful, the litigation seeking publication of Guidance would only bring clarity to the existing law; it would not change the law in terms of access to abortion.) In December 2010, Alliance for Choice, the NIWEP and the FPANI therefore requested the CEDAW Committee to conduct an inquiry into access to abortion in Northern Ireland under the Convention’s Optional Protocol.

The idea of using the inquiry mechanism was first seriously mooted in the corridors of the 2009 UK periodic review by CEDAW. NIWEP was present at the hearing and participated in these early discussions. Quickly recognizing the need for further local expertise in both advocacy and service provision on access to abortion in Northern Ireland, approaches were made to Alliance for Choice and the FPANI to seek support for an inquiry request. (FPANI submitted its own separate Shadow Report to the CEDAW Committee for the 2009 UK periodic review and had identified the Committee as a potential avenue through which to advance its advocacy.)

Of the three organizations involved in the inquiry request, none principally define their mandate or priorities in terms of international human rights law or advocacy. While all three organizations periodically make reference to international human rights law in the course of their advocacy, these are not ‘human rights NGOs’ as typically understood. The adoption of a human rights framing in the CEDAW inquiry submission, and related advocacy, reflects not so much an unequivocal endorsement of the international human rights system. Rather, it can be understood as the selective strategic invocation of a specific human rights mechanism in the face of local government opposition, UK government inaction and the resource and legal limitations of a strategic litigation approach in Northern Ireland. This was not a question, therefore, of the gradual realization of pro-choice advocates of a ‘local rights consciousness’ (Merry, 2006: 134). The individual women and organizations that led the CEDAW inquiry submission did not need to be reassured that they were rights holders, rather they needed to be convinced that a human rights framing offered credible prospect of (legal or cultural) progress, with no significant countering threats of political or material loss. The participating organizations actively weighed the potential costs of the initiative, namely resource costs, in terms of the organizational time that would be required to compile the submission without any guarantee that the Committee would accept the request. They further considered the potential political costs, that closer CEDAW Committee scrutiny might reinforce local opposition to change and ultimately strengthen claims of distinctive cultural values. And finally, the possible negative legal implications were considered, in terms of the potential for the Committee either to decline to conduct the inquiry, or to conduct the inquiry and not find ‘grave or systematic’ CEDAW violations, thereby producing a ‘false innocent’.

The potential benefits of the initiative were also actively considered, namely, while the submission would require organizational time, it would not require a financial outlay, which presented a clear advantage over strategic litigation. In addition, it was felt that the international scrutiny might embarrass the UK government into taking action, in line with established human rights advocacy strategies of ‘shame mobilization’ (Drinan, 2002). Likewise, in a practical sense, all communication from the Committee on the inquiry would be directed to the state party and not the devolved region. The process itself might, therefore, compel the UK government to take more active responsibility for the CEDAW non-compliance of abortion law in Northern Ireland. Further, the express human rights framing offered the potential of alliances with broader civil society groups who, while not avowedly prochoice, did subscribe to the pursuit of international human rights standards.

The ultimate submission would take a year to complete, involving frequent meetings between the three organizations to refine content, determine appropriate evidence and strategize around garnering written support from other civil society organizations. The submission made by the requesting organizations included and went well beyond the absence of legal clarity in the jurisdiction, and instead focused on the material and emotional cost to women of the legal status quo:

This submission provides details and evidence of the grave and systematic nature of these human rights violations. To focus solely on individual incidents of reproductive rights violations in Northern Ireland as isolated cases would, firstly, fail to capture the scale of the problem, secondly, deny the systematic institutional failings giving rise to these violations, and thirdly, not address the underlying discriminatory political factors giving rise to the denial of the reproductive rights of women living in Northern Ireland. (Family Planning Association Northern Ireland et al., 2015: 3.14)

The submission is, in-and-of-itself, the most detailed, comprehensive and robustly evidenced documentation of the legal, political and social contexts of access to abortion in Northern Ireland, as well as the material, emotional and political consequences of the restrictive abortion regime. It evidences the value of the collective endeavour and enterprise of its authoring organizations, who were able to pool their service provision and advocacy expertise in order to produce this unique submission. Moreover, while the three authoring organizations worked to common goals, they did not have a prior record of collaborative working in order to produce a defined output, such as the inquiry request. In terms of the description of the law and context, evidence gathering and collaborative working, the request for an inquiry is arguably a victory for having happened at all. Merry (2003) argues that the CEDAW Convention and Committee are more important for the cultural work that they do, in allowing contentious or ignored issues to be reframed as global human rights issues, than in the formal enforcement of their legal standards. The collaborative working involved and the framing of the submission in rights-affirming language throughout evidence both the cultural work that an inquiry mechanism can facilitate, as well as the particular receptiveness of CEDAW to framing abortion as a rights issue. This latter point is usefully contrasted with the identified limitations of the domestic public law regime and the FPANI strategic litigation.

The Cultural Limitations of CEDAW

The potential dividends offered to local pro-choice advocacy by the CEDAW inquiry mechanism are significant. Nevertheless, the CEDAW Convention and Committee do not operate in a vacuum. Rather, CEDAW is embedded within an international human rights system characterized by structural gendered limitations (see generally, Bunch, 1990) and supported through human rights advocacy that, while largely progressive, nevertheless evidences regressive gender sub-themes (O’Rourke, 2013: 65–73). In many respects, the Northern Irish case and the request for an inquiry evidence the cultural work that CEDAW can do, in underpinning alliances across feminist and service provision pro-choice organizations and in reframing demands for law reform into rights-affirming language (Joachim, 2007). But the Northern Irish case also points to the limitations of that cultural work, in particular, when reflecting on the silence of local human rights NGOs concerning the inquiry request. Given the implications of the United Kingdom’s continued defiance of the CEDAW Committee for human rights compliance more broadly in Northern Ireland, it might reasonably be assumed that human rights NGOs have been to the forefront of activities to secure state compliance with CEDAW’s recommendations. Instead, at the time of the inquiry request, mainstream human rights NGOs were notable by their silence on the issue. As the article documents more fully below, it was only compliance issues with civil and political rights guaranteed under the ECHR that ultimately spurred local human rights NGOs to act on abortion.

Human rights activism in Northern Ireland has always been a fraught activity (Bell and Keenan, 2004; see generally, Curtis, 2014). The state-based nature of human rights obligations meant that it was the state’s activities that were subjected to scrutiny by rights-based advocacy and the international human rights system in Northern Ireland. In a conflict defined by opposing positions on the legitimacy of the state, it was very difficult to posit the exclusive legal scrutiny of the state’s conduct of the conflict as a politically neutral activity. Thus, there is a widely held perception of international human rights law as a political and legal discourse ‘owned’ by the minority Catholic-nationalist community in Northern Ireland (Curtis, 2014). This perception militated against broad-based civil society advocacy to document human rights violations. The state’s powers of arrest and detention and unlawful killings by security forces were the primary concern of litigation emerging from Northern Ireland at the European Court of Human Rights (Dickson, 2010). A review of human rights documentation and advocacy work in Northern Ireland during the Troubles reveals five themes to this advocacy, organized along a traditional catalogue of civil and political rights protections: access to justice, the state’s use of force, states of legal exception, restrictions on political organizing and the treatment of prisoners (O’Rourke, 2013: 74–75).

One potential area of overlap between human rights and women’s rights advocates during the Troubles concerned the lack of clarity in the law governing access to abortion in Northern Ireland. In May 1993, Professor Simon Lee of the Standing Advisory Committee on Human Rights (SACHR; the predecessor to the contemporary NIHRC) wrote a paper entitled: ‘Abortion Law in Northern Ireland: the Twilight Zone’ (Standing Advisory Committee on Human Rights, 1993). Prompted by the decision of the Irish Supreme Court in the X case, the SACHR paper argued that the prevailing uncertainty in the law was sufficient to amount to a violation of the legal certainty requirements of Article 10 of the ECHR. The thrust of the paper was to assert the inevitability of a successful challenge to the status quo in the European Court of Human Rights and, consequently, the need for domestic legislation on the matter to provide clarity.

[T]his paper simply insists that whatever the content of the law is, it should be sufficiently accessible to citizens to satisfy the requirements of the international law of human rights. (SACHR, 1993: para 19)

These gendered patterns of human rights advocacy established during the conflict in Northern Ireland have persisted through the most recent round of CEDAW-based advocacy for liberalization of abortion law. Access to abortion in Northern Ireland has been the single most significant CEDAW compliance issue raised with greatest frequency and concern by the Committee in its two decades of examining UK state reports, yet has hardly penetrated mainstream human rights advocacy involving CEDAW. For example, CAJ was not initially approached to join the civil society inquiry request to CEDAW due to their previous silence and inactivity on the issue of abortion in Northern Ireland. This inactivity is illustrated most notably the decision not to support SACHR’s 1993 paper, but also by the more recent decision not to mention access to abortion or reproductive rights in its 2008 Shadow Report to CEDAW (Committee on the Administration of Justice, 2008), despite the specific recommendations made by the Committee in its previous Concluding Observations. Neither access to abortion specifically, nor reproductive rights in general, ultimately featured anywhere in the 2013 Shadow Report to CEDAW (Committee on the Administration of Justice, 2013a), despite having received a copy of the CEDAW inquiry request.

Similarly, the request for an inquiry did not note the support of Amnesty International when it was made in 2010. At that time, the organization had no track record of work on abortion law in Northern Ireland. Amnesty International’s Belfast Office has a programme of work that historically focused on accountability issues concerned with dealing with the past (Amnesty International UK, 2012) and institutional and clerical abuse, although it has broadened to include violence against women, in particular, human trafficking (Amnesty International provides the Secretariat to the Northern Ireland Assembly’s All Party Group on Trafficking). Amnesty International did in 2007 adopt a global position on abortion which advocated, among other things, the decriminalization of abortion, the provision of abortion services to women pregnant as a result of rape and to women whose lives were endangered by the continuation of pregnancy (Amnesty International, 2007). However, the recommendations sought in the inquiry request went beyond that global position. The particular challenges faced by the Amnesty International Belfast Office within Northern Irish Catholic schools, who disbanded their Amnesty groups upon adoption of the global position, are also noteworthy factor in this discussion (McDonald, 2007).

Finally, Northern Ireland’s independent human rights commission, also established under the 1998 Belfast/Good Friday Agreement (Agreement Reached in Multi-Party Negotiations, 1998: Rights, Safeguards, Equality of Opportunity: para 5), has historically been resistant to articulating international human rights obligations as they pertain to abortion in Northern Ireland. In its 2008 guidance to the Secretary of State on the proposed content of a Bill of Rights for the jurisdiction, the NIHRC stated:

The issue of women’s rights in respect of reproduction, and especially the issue of termination of pregnancy, has been one of the most controversial in the Commission’s consultations on a Bill of Rights for Northern Ireland. Forceful and deeply felt submissions have been made, in respect of a right to life for unborn children and in respect of a right of choice for women. There is no clear widely accepted international standard in respect of the underlying issues. (NIHRC, 2008: 116, emphasis added)

The role of human rights advocacy in local and transnational settings in advancing the legal and normative development of human rights, in addition to human rights enforcement, is typically celebrated by scholars of such advocacy (see especially, Keck and Sikkink, 1998). Such work appears to assume (implicitly at least) that the values underpinning human rights mobilization are progressive. These implicit assumptions are evident in the identification of transnational advocacy networks as constructed around ‘principled issues’, consisting of actors motivated by a selfless commitment to social struggles of the disenfranchised, and the need to circumvent the recalcitrance or opposition of the violating state (Keck and Sikkink, 1998). Findings from the Northern Irish case suggest that this assumption may not be entirely correct. While human rights advocacy networks coordinate around largely progressive agendas of individual rights and state accountability, the response of human rights NGOs in 2010 to the CEDAW inquiry initiative reveals space within these larger narratives for regressive sub-themes failing, most notably, to challenge the regressive regulation of women’s sexuality (O’Rourke, 2013: 65–73).

The reticence of ‘mainstream’ human rights NGOs to forcefully advocate for women’s access to abortion reveals the gendered chinks and gaps of the ‘transnational consensus building’ (Merry, 2006) work that produces international human rights law, and its local consequences in sites such as Northern Ireland where human right-based advocacy for abortion law reform is pursued. The creation and enforcement of international human rights law is, very often, a site of conflict where different values and priorities and resource-inequalities play out (Bob, 2012; Chappell, 2006). Norm generation occurs in a space in which meanings are heavily contested and in which social movements constitute ‘interpretative communities’ that add shape and definition to international law (Cover, 1983). Movement actors are involved in production and maintenance of meaning, as they frame how movement members and observers understand a particular issue or problem, such as accessing abortion, in local, transnational and global spaces (Buss and Herman, 2003). On the whole, the unwillingness silence of the mainstream human rights NGOs concerning the inquiry request in 2010 and the reluctance to work more broadly on CEDAW-based advocacy for abortion law reform revealed important limitations to the cultural work possible for CEDAW in a difficult domestic setting.

The Structural and Legal Limitations of CEDAW

Analysis of the ‘cultural work’ that CEDAW can do, for example, in fostering shared understandings of particular social problems such as the denial of abortion services to women, needs also to be understood as embedded within the structural and legal framework of the international human rights system. The under-enforcement of women’s human rights has already been recognized in analysis of CEDAW and in the specific case of the UK government’s repeated defiance of CEDAW Committee recommendations to expand the restrictive access to abortion in Northern Ireland. The under-enforcement of women’s human rights, in particular, the specific rights codified in CEDAW, means that state non-compliance with more progressive articulation of women’s rights to reproductive autonomy goes unsanctioned. Arguably even more damaging, however, to the protection of women’s human rights is the ongoing privileging of civil and political rights claims that remains characteristic of the international system for the protection and promotion of human rights. One of the core feminist critiques of international human rights law has been its traditional focus on violations of civil and political rights perpetrated directly by state agents and overwhelmingly perpetrated against male political actors. Charlesworth (1993: 8) has thus labelled the traditional catalogue of civil and political rights ‘what men fear most will happen to them’. The focus of Northern Irish human rights advocacy on civil and political rights violations during the conflict, namely access to justice, the state’s use of force, states of legal exception, restrictions on political organizing and the treatment of prisoners (O’Rourke, 2013: 74–75), provides practical empirical evidence for this sustained conceptual critique. The historical failure of the local human rights community in Northern Ireland to monitor or pursue enforcement of CEDAW recommendations on abortion must also be seen in terms of this hierarchy of civil and political rights within international human rights law.

The human rights canon has evolved considerably in recent decades to broaden its concern beyond those typically attached to the male political actor, most notably in the articulation of due diligence obligations on states to prohibit, prevent and punish violence perpetrated against women by private actors (Edwards, 2011). Relatedly, significant human rights developments in state obligations to liberalize access to abortion have occurred within the mainstream and regional treaty-based systems for the protection of civil and political rights (see generally, Zampas and Gher, 2008). There is recognition of the potential for highly restrictive abortion regimes to constitute violations of the right to freedom from torture, and cruel, inhuman and degrading treatment, where the denial of abortion leads to the threshold level of physical and mental harm (Karen Noelia LLantoy Hauman v. Peru, 2005). Consistent with this focus has been the right to life concerns raised by similar circumstances in which the denial of access to abortion has threatened the life of the pregnant woman. Further, a related set of procedural obligations have been articulated, most notably by the European Court of Human Rights, around the need for an effective mechanism to vindicate rights to abortion where domestic regimes establish limited provision for lawful abortion (see A. B. and C. v. Ireland, 2010: para 249; R.R. v. Poland, 2012: para 187; see also, Tysiac v. Poland, 2007: para 116). Nevertheless, progress secured through civil and political rights avenues evidences a general reluctance to engage with the substantive issues of gender equality and the right of individual women to control their reproduction and sexuality. The privileging of civil and political rights within international human rights law remains a barrier to the robust and comprehensive recognition of women’s reproductive autonomy under international human rights law.

The global dynamics in the privileging of civil and political rights interface tellingly with Northern Irish dynamics surrounding the 2013 Draft Guidance for medical professionals on the lawful termination of pregnancy (Department of Health, 2013a). The belated attention of the human rights community to issues of potential human rights non-compliance emerged ultimately not from CEDAW’s continued scrutiny of abortion law in Northern Ireland. It emerged instead from the Department of Health, Social Services and Public Safety’s (Department of Health) 2013 Draft Guidance that was, in human rights terms, a game changer. It prompted responses from Amnesty International (2013), the Committee on the Administration of Justice (2013b) and the NIHRC (2013a). With the publication of the 2013 Draft Guidance, it seemed that the Department of Health had succeeded in doing what several decades of pro-choice advocacy did not: prompting mainstream human rights advocates to take on the human rights concerns inherent in restrictive access to abortion in Northern Ireland.

The 2013 Draft Guidance, tellingly entitled ‘The Limited Circumstances for a Lawful Termination of Pregnancy in Northern Ireland: A Guidance Document for Health and Social Care Professionals on Law and Clinical Practice’ (emphasis added), was published by the Department of Health in April of that year. The Draft motivated a robust response, several more than previous iterations of the Guidance (Department of Health, 2013b: para 2.4), which was attributed in part to public outcry in the Republic of Ireland following the death of Savita Halappanavar (see Murray, 2016), but which was also linked to widespread unhappiness with the threatening and intimidating tone of the document (Department of Health, 2013b: para 2.13). For example, the threat of prosecution was reiterated throughout the Draft Guidance, first in relation to the legal duty on health and social care professionals to report any procedure that is unlawful in Northern Ireland: failure to do so, as the Guidance reminded the medical professional, risks a maximum of 10 years in prison (Department of Health, 2013a: para 2.13). In addition, anyone convicted of performing an abortion is liable to criminal prosecution with a maximum penalty of life imprisonment (para 2.6). Anyone convicted of a secondary role is liable to the same penalty (para 2.13). This is a profoundly threatening legal climate in which to operate and to seek to vindicate access to lawful abortion. By stating and repeating these risks of prosecution repeatedly throughout the document, the Department was doing much to exacerbate, rather than alleviate, the ‘chilling effect’ ⁸ of the existing criminal sanctions for unlawful abortion.

CAJ, the NIHRC and Amnesty International UK’s Belfast Office all made robust responses to the Department of Heath consultation on the 2013 Draft Guidance. Their responses focused on European Convention compliance concerns, in particular, in terms of the Article 8 (right to private and family life) concerns raised by the absence of a procedure to deal with differences of opinion between the pregnant woman and her doctor (Amnesty International UK, 2013; CAJ, 2013b; NIHRC, 2013a: paras 12–16). Moreover, the provisions dealing with providing information on access to abortion in other jurisdictions were framed with insufficient precision to satisfy Article 10 (freedom of expression and information) requirements that restrictions on such rights be ‘foreseeable’ (Amnesty International UK, 2013; CAJ, 2013; NIHRC, 2013a: paras 31–33). Importantly, in particular, in light of the silence of previous CEDAW Shadow Reports on the issue of abortion, the NIHRC’s 2013 Shadow Report to the CEDAW Committee’s periodic examination of the United Kingdom finally addressed potential CEDAW non-compliance due to the legal regulation of abortion (NIHRC, 2013b: 22–24). These concerns were framed entirely in terms of the human rights issues presented by the 2013 Draft Guidance. Thus, it was the acute circumstances presented by the 2013 Draft Guidance that finally prompted the NIHRC to include abortion in their CEDAW Shadow Report. The shorter response to the Consultation on the 2013 Draft Guidance submitted by CAJ – and in a much belated adoption of the concerns articulated by the SACHR two decades earlier – dealt primarily with the absence of legal certainty in the prevailing law and the failure of the Draft Guidance to redress this uncertainty. Significantly, the lengthy response by Amnesty International UK’s Belfast office (Amnesty International, 2013) reiterated and went beyond the civil and political rights concerns articulated by CAJ and the NIHRC, which suggests a positive ‘read-across’ (Bell, 2013: 224) from its international campaign priorities to the context of Northern Ireland, and an important development in mainstream human rights framing of abortion in the jurisdiction.

These dynamics provide critical context for understanding the successful (at the time of writing, an appeal is pending) judicial review brought by the NIHRC is seeking a declaration from the Northern Ireland High Court that the criminalization of the termination of pregnancy in cases of the serious malformation of the foetus, rape and incest is incompatible with the UK’s obligations under the ECHR Article 8 (right to private and family life) (the case also claimed – unsuccessfully – violations of Article 3 (prohibition of torture, inhuman and degrading treatment) and Article 14 (prohibition of discrimination) read with Article 8 (Northern Ireland Human Rights Commission, Re an application for judicial review, 2015). This article has characterized the request for a CEDAW inquiry as an effort to pursue broader cultural change in Northern Ireland in respect of women’s reproductive rights, in particular, by working in tandem with FPANI’s strategic litigation against the Northern Ireland Department of Health. The significance of the NIHRC taking on this case without a named victim, but instead in the exercise of its broad statutory power to ‘bring proceedings involving law or practice relating to the protection of human rights’ (Northern Ireland Act 1998, section 69(5)(b)), should not be underestimated. While considered examination of the reasons for the NIHRC’s altered approach is beyond the scope of the article, institutional learning fostered by the Commission’s response to the 2013 Draft Guidance, combined with changes in key personnel, appears relevant. The litigation constitutes a sea change in the priorities and operation of the Commission.

International human rights law can be viewed as legal codification of abstract philosophical principles. But human rights law is also the site and outcome of contestation over values between multiple state and non-state actors. Viewed in these latter terms, the feminist critique of human rights law moves from seemingly remote academic discussion of gendered ‘hierarchies’ and generations of rights (Bunch, 1990; Charlesworth and Chinkin, 2000), to more concrete concerns about the substance of human rights-based mobilization and documentation. The belated and highly selective adoption of a human rights framing in the response of mainstream human rights NGOs to the civil and political rights violations inherent in the 2013 Draft Guidance is a powerful demonstration of the enduring salience of foundational feminist critiques of human rights.

Conclusion

In Northern Ireland, as elsewhere, human rights-based claims for women’s greater reproductive autonomy have greater or lesser weight depending on their fit within both the prevailing cultural context and broader civil and political rights claims (Sanger, 2016). In recent years, these dynamics have been most evident in the failure to mobilize broad-based human rights action in response to the persistent CEDAW non-compliance arising from the limited abortion services in Northern Ireland. The difficulties encountered by the feminist movement in Northern Ireland mirror those encountered within the international human rights movement and system. Both at national and international levels, the under-enforcement of women’s human rights, the privileging of civil and political rights, and regressive sub-themes in human rights advocacy, reveal the embedded gendered shortcomings of the human rights frame and the cultural possibilities of CEDAW. It remains doubtful that advances in the recognition of the civil and political rights implications of restrictive abortion regimes have done much to shift these embedded gendered shortcomings. The potential for more robust articulation of the human right of women to access abortion services as a matter of gender equality continues to be underdeveloped.

Northern Irish pro-choice organizations continue to await the outcome of the request for a CEDAW inquiry. The CEDAW Committee has itself marked an important new departure in the consideration of abortion, with its landmark decision LC v. Peru (2011), which emphasizes the Article 5 (discriminatory social and cultural pattern) violation of health systems denying women lawful abortions on the basis of gender stereotypes (see generally, Cook and Cusack, 2009). Experience from the campaign to recognize violence against women as a human rights violation evidences the importance of the CEDAW Committee in articulating and advancing subaltern interpretations of human rights obligations that ultimately penetrate the mainstream human rights system (Edwards, 2011: 168–172). As Merry (2006: 16) observes: ‘Culture is as much present in international human rights conferences and UN institutions as in local villages (though typically associated only with the latter)’. Jurisprudential developments by the CEDAW Committee in LC v. Peru can foster broader cultural change within the international human rights system and could now usefully be advanced through the inquiry procedure. Nevertheless, the CEDAW Committee’s apparent reticence to utilize the inquiry procedure is a cause of concern as to the mechanism’s efficacy for the enhanced protection of women’s rights guaranteed under CEDAW. The Optional Protocol entered into force in December 2000. Prior to 2015, the inquiry procedure was utilized only once by the CEDAW Committee, in the case of grave, widespread and systematic physical violence against women on the US–Mexico border (CEDAW, 2005). In 2015, however, there has been much greater public activity by the Committee under the procedure, with the Committee’s publication of its inquiry reports concerning the grave and systematic violation of the rights of indigenous women in Canada (CEDAW, 2015a) and the inaccessibility of contraceptives to women in the Philippines capital, Manila (CEDAW, 2015b). Whereas the focus on grave, widespread and systematic violence against women in the CEDAW Committee’s inquiries in both Mexico and Canada generated some concern that the procedure’s efficacy to protect the full panoply of women’s rights, the robust articulation of state obligations to vindicate women’s sexual and reproductive rights in the Philippines inquiry is a cause for optimism. In addition to the focus on sexual and reproductive rights, the Philippines inquiry shares some important features with the inquiry request from Northern Ireland, in particular, in the focus on violations by substate entities and in the scrutiny of the de jure and de facto protection of women’s reproductive rights (CEDAW, 2015b: 3). The CEDAW Committee’s focus on unlawful abortion in the Philippines inquiry, principally as a cause of maternal deaths (CEDAW, 2015b: 11, 18), arguably circumscribes the relevance to the Northern Irish case, however, where unsafe abortions are largely avoided by the possibility of travel for the procedure to neighbouring states. Moreover, the CEDAW Committee’s relative slowness in advancing the Northern Ireland inquiry request since its submission in December 2010 means that the local efficacy of the inquiry initiative must be considered critically.

Also informing evaluation of the efficacy of the inquiry request should be the breadth of third-party interventions in relevant domestic litigation. Similar to the earlier FPANI litigation initiated in 2002, SPUC and the Northern Bishops of the Roman Catholic Church successfully sought leave to intervene in the NIHRC litigation and are supported by the intervention of the Attorney General of Northern Ireland, in their position in favour of the status quo on restricted access to abortion. In marked contrast to the earlier FPANI litigation, in which there were no pro-choice third-party interventions, the NIHRC has been supported by separate interventions in favour of its liberalizing position from Alliance for Choice (2015, on file with author), FPANI (2015, on file with author) and Amnesty International UK (2015a, on file with author). Throughout these interventions, the CEDAW Convention, and indeed, the submission to the CEDAW Committee requesting an inquiry, has featured prominently. Likewise, 2015 also witnessed an unsuccessful appeal brought to the decision of the High Court of England and Wales affirming the requirement that women travelling from Northern Ireland to Great Britain for an abortion must pay privately for the procedure and cannot avail of the National Health Service (an appeal to the Supreme Court is pending). The unsuccessful appeal had claimed inter alia a violation of the applicant’s ECHR rights under Article 14 (non-discrimination) read with Article 8 (private and family life) (A v. Secretary of State for Health, 2015). In the appeal, a third-party intervention from Alliance for Choice drew primarily on the submission to the CEDAW Committee requesting an inquiry in order to strengthen the discrimination claim (Alliance for Choice, 2015b, on file with author).

The request for a CEDAW inquiry can be viewed as generally supportive of, and conducive to, these broader developments, both in the upskilling of pro-choice advocates to utilize international instruments in support of their advocacy (see generally, Roa and Klugman, 2014) and in starting difficult – initially unsuccessful – conversations with local human rights organizations. Moreover, the broad-based nature of the current litigation offers a promising contrast with the cultural and legal tapestry of the FPANI’s legal challenge to the Department of Health initiated in 2002. The utilization of CEDAW to support domestic litigation strategies suggests a tentative coming together of advocacy for both cultural and legal changes. In a jurisdiction so obstinately resistant to reform on abortion, these green shoots of change must be acknowledged and celebrated.