Devolving abortion law: a positive step or cause for concern?

With powers over abortion legislation set to be devolved to Holyrood, Jennifer Thomson asks whether this presents an opportunity or a potential setback for women’s rights in Scotland.

mage © Scottish Parliamentary Corporate Body – 2012. Licensed under the Open Scottish Parliament Licence v1.0

mage © Scottish Parliamentary Corporate Body – 2012. Licensed under the Open Scottish Parliament Licence v1.0

Powers over abortion are set to be devolved from Westminster to Edinburgh. The news, breaking last week, was surprising, given that there had been little intimation from national government that this was to happen, and little encouragement to devolve this issue from any of the Scottish parties. Scotland is not the first of the devolved regions to be allowed to decide on this issue separately from central government. The 1967 Abortion Act, which continues to allow for legal terminations in England, Scotland and Wales, has never been extended to Northern Ireland, and the procedure there continues to be strictly prohibited.

Yet the unexpected decision to move this issue from central government to the Scottish Parliament raises several key political questions. What does this decision by Westminster tell us about the gendered nature of devolution in the contemporary UK? Should feminists and women’s civil society in Scotland be worried that this move might rally calls for more conservative legislation north of the border? Or does this allow what is already a very feminised political sphere in Scotland a chance to further reiterate its commitment to women’s rights and introduce more liberal laws?

Devolution of abortion laws: a potential positive movement for women’s rights?

Feminists have long pointed out fundamental problems with the 1967 Abortion Act. Unlike in some other jurisdictions (most of the Nordic countries and South Africa for example), abortion is not available in the UK at the woman’s request. Doctors remain gatekeepers to the procedure. Although evidence of medical professionals refusing to refer women for terminations is rare, legally women still require the permission of not one, but two doctors, before they may have an abortion. Whilst nurses and midwives are now allowed to play a key role in providing services, overall control of the procedure still remains with doctors. Women having terminations via medical rather than surgical procedure (the so-called ‘abortion pill’) have to do so in medical facilities, rather than their own home, despite the relative safety of such medication, and the inconvenience caused.

Devolving abortion to Scotland potentially allows the country to address some of these issues. In the increasingly feminised environment of Scottish politics (with three major parties lead by women, a consciously feminist First Minister, and a gender equal Cabinet) it is difficult to imagine Edinburgh taking a conservative line on such a hot-button women’s issue. Instead, it might be possible that Scotland move towards a more liberal position such as that of Canada, where abortion is removed from the criminal code entirely, or for restrictions around the ‘abortion pill’ and the role of nurses and midwives to be loosened. Indeed, one SNP MP has declared that “I want this power not just because I want all powers to come to Scotland but I want to improve and protect a woman’s right to choose and to access quality healthcare.” A motion affirming women’s rights to reproductive healthcare has already been tabled in the Scottish Parliament by the co-convenor of the Scottish Greens, and the British Pregnancy Advisory Service have urged Scottish parliamentarians to use this as an opportunity for positive change.

Even if more liberal laws are not created as a result of this move, at one level, this suggests a normalisation of political attitudes around abortion. As Secretary of State for Scotland, David Mundell said “there is no reason why the Scottish parliament should not be able to decide an issue of this significance because it has demonstrated its ability to do so on numerous other significant issues.” From this line of reasoning, abortion is part of wider reproductive healthcare – why shouldn’t it be devolved like anything else which concerns the NHS? From the perspective of women’s rights, this can be read as a positive decision, treating abortion as a normal policy issue and as part of the broader spectrum of healthcare.

The Northern Irish case: cause for concern in Scotland?

However, turning to the one part of the United Kingdom where abortion laws were previously devolved, the result has not been positive. Northern Ireland has never been covered by the 1967 Abortion Act. As such, terminations are incredibly restricted, legal only where there is serious, long-term threat to the life or health of the women involved. Even in cases of fatal foetal abnormality, where the pregnancy will likely not go full term, or the baby will die shortly after birth, terminations are still not allowed.

Political movements to encourage liberalisation of these strict abortion laws have been all but non-existent, with the issue instead encouraging unusual links across Northern Ireland’s divided politics. Furthermore, devolution in this case has opened up a regional space which allows for religious and pro-life forces to mobilise against liberalising change. Pro-life organisations in Northern Ireland are incredibly well organised, with key links to influential politicians and sizeable funding. Precious Life, the main pro-life lobbying organisation in the province, organise daily protests outside both the Family Planning Association and the Marie Stopes clinics in central Belfast. In addition to this, they have also recently opened a competing ‘pro-life’ healthcare facility, conveniently located between the two clinics.

The particular blend of religion and politics that is enjoyed in Northern Ireland remains largely unique to the province in comparison to the rest of the UK. It seems unlikely that similar scenes will occur in Scotland. Yet by devolving this legislation, a new space for potential change is opened up, and the pro-life movement may find room for manoeuvre. Alex Salmond, former First Minister and current MP, is on record as supporting a lower time limit for abortions. A Motion in the Scottish Parliament has already been proposed to discuss in part “the fundamental rights of babies to be protected both before and after birth”. Conservative forces are as able to use this legislative movement as more liberal voices.

What is abortion an issue of?

Regardless of what direction (if any) abortion policy in Scotland is now taken, a more fundamental question needs to be asked: why remove control around abortion from central government in the first place?

In the case of Northern Ireland, the perceived different sensibilities around this issue have long been used to justify difference around this issue. Equally, politicians continually refer to the issue as one of the few points of unity in the region’s divided politics, and the cross-party nature of several attempts to greater restrict abortion in the province reflects this. Repeatedly Westminster politicians (both Northern Irish and from the rest of the UK) have argued that the people of Northern Ireland feel differently about abortion, and that the democratic will of the Northern Irish people in this regard should be respected. Such political statements remain very much out of line with contemporary survey data from the province, which suggests strong support for liberalisation.

Not only does this difference of opinion argument appear to be lacking in the Scottish case, but why is it considered valid in the first place? Why should opinion, rather than evidence, play such a role here? Why is abortion not considered a fundamental aspect of sexual and reproductive healthcare, and part of the individual’s basic right to bodily autonomy?

Attempts to establish abortion within a rights discourse have continually suffered difficulties, in many different locales. The UK is a signatory to the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and is examined every four years by its Committee. The CEDAW Committee have repeatedly raised the issue of the discrepancy in abortion law with regards to Northern Ireland, but this has excited little interest from Westminster. As part of the 2013 examination, where the Committee urged the UK once again to expedite the decriminalisation of abortion in Northern Ireland, central government response was brief: “There are no plans to change the law on abortion in Northern Ireland.” Using a human rights based argument to force movement on the issue of abortion has gained little ground.

Without the backing of central government, or a strong rights based argument underlying the discourse around the issue, abortion laws do appear vulnerable to change. At present, it is difficult to tell which direction (if any) Scotland might move in. A new arena for conservative challenges to women’s rights has been made available, however, and opposing views on the matter are already making themselves known. Women’s rights activists and politicians must be vigilant.

Jennifer Thomson is a PhD candidate in Politics and International Relations at Queen Mary, University of London.

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