The Guardian Exposure: THE LAW
The Team Effort of Henry McDonald and Amelia Gentleman
Henry McDonald and Amelia Gentleman failed to properly outline the law on abortion in Northern Ireland and undermined the seriousness of this criminal offence by framing it in terms of ‘exceptions’ and without any mention of the victim; the unborn child.
- “abortions are only permitted in the region’s health service if the life of the mother is directly under threat or in cases in which there would be lasting long-term negative effects on her health”[1]
- “abortion is only carried out when the life or mental health of the mother is deemed to be in danger.”[2]
Johanna Higgins, a barrister and co-founder of the Association of Catholic Lawyers of Ireland, with five years’ experience as a senior public prosecutor, explains why it is incorrect to assume that a criminal offence can be ‘lawful in limited circumstances’:
As with any other criminal offence, there may be a defence which may be raised in an extreme case. The defence is not automatic but depends on the circumstances of the act carried out.[3]
The Defences
With regard to the criminal offence of abortion, a court may follow R v Bourne [1938], a case which extended the defence provided in the statutory prohibition of child destruction to abortion, and expanded it to include therapeutic health reasons, i.e. to prevent a real and serious adverse effect on the mother’s physical or mental health.[4]
The defence to child destruction is much narrower because the Bourne case does not apply to child destruction directly, and so the defence to child destruction is very strict and is applicable only when the mother’s life is at risk.
Therefore, contrary to what Henry McDonald and Amelia Gentleman would mislead their readers to believe, abortion is a criminal offence and whether the defence may be relied on by the defendant in a criminal trial is for the jury to decide. It is not the doctor’s privilege to deliberate whether a mother’s condition qualifies as an ‘exception’ in the privacy of a clinical setting.[5]
[1]Henry McDonald: 30th November
[2]Amelia Gentleman:30th November
[3] See generally, Johanna Higgins, ‘Statement of the Law against Abortion and Child Destruction in Northern Ireland’ (ACLI Legal Publications 2012).
[5] “That is not an exception to a law, just as defence to murder or rape is never described as an exception.”http://europeanlifenetwork.blogspot.co.uk/2013/02/the-effect-of-losing-1861-offences.html