Legal background

Netherlands

Like the other Women on Waves campaigns, the abortion robot is using the different legal realities in the Netherlands and NI.

The robot is operated from the Netherlands and is transporting the abortion pills to the woman. The Dutch abortion law does not apply because no treatment intended to end a pregnancy is provided in the Netherlands. 

Northern Ireland

With the robot the abortion pills can be supplied to women in Northern Ireland without breaking the law because the robot is operated from the Netherlands.

The UK’s Abortion Act 1967 does not extend to Northern Ireland and the north’s abortion laws are still governed by sections 58 and 59 of the Offences Against the Person Act 1861 as well as sections 25 of the Criminal Justice Act (Northern Ireland) 1945.  It is unlawful to perform an abortion in Northern Ireland except in very limited circumstances, namely: to preserve the life of the woman; or, a risk of real and serious adverse effect on the woman’s physical or mental health, which is either long term or permanent, as established by case law.

The Belfast High Court ruled that laws governing abortion in Northern Ireland are in breach of Article 8 of the European Convention on Human Rights, on the right to privacy.

Still, women face life imprisonment for a health service freely provided on the NHS elsewhere in the UK. Several women have already been prosecuted.  

Although the act of abortion is illegal in Northern Ireland except for in very limited circumstances, the medication itself is not.  According to The Electronic Medicines Compendium (EMC) both Misoprostol and Mifepristone are authorised medications in the UK.  The robot will contain prescriptions of mifepristone for the women who will swallow them.

The possession of mifepristone in Northern Ireland can not be prosecuted under the Offences Against the Person Act 1861. Neither can swallowing the tablets. 

Submitting a woman to a physical examination to determine whether she was or is pregnant or not against her will, would be a violation of her human rights (Universal declaration of Human rights art. 5 and International convenant on Civil and political rights art. 7) 

Furthermore the restrictive abortion law is a violation of women’s right to access essential medicines as recognized by the United Nations Human Rights Commission.   

Related Human rights treaties:

1-    Freedom of expression

Any obstruction or prosecution concerning the Abortion Robot Campaign would violate article 10 of the ECHR, freedom of expression as confirmed in an earlier ECHR case against the Portuguese government.
In this case the Court pointed out that the right to freedom of expression included the choice of the form in which ideas were conveyed, without unreasonable interference by the authorities, particularly in the case of symbolic protest activities.  The Court therefore concluded that there had been a violation of Article 10 as the interference by the authorities had been disproportionate to the aims pursued.

2-    The right to privacy as stated under Article 12 of the Universal Declaration of Human Rights:

“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

3-    Human right to health and access essential medicines

The World Health Organization’s definition of health is: “Health is a state of complete physical, mental and social well-being, and not merely the absence of disease or infirmity”.

The WHO listed mifepristone and misoprostol as essential medicines since 2005.

Access to essential medicines as part of the right to the highest attainable standard of health ("the right to health") is well-founded in numerous international human rights treaties, such as: the Universal Declaration of Human Rights: Article 25.1 in 1948; the International Convention on the Elimination of All Forms of Racial Discrimination; Article 5 (e) (iv) in 1965; the International Covenant on Economic, Social and Cultural Rights: Article 12.1 in 1966; the Convention on the Elimination of All Forms of Discrimination against Women; Articles 11 (1) (f), 12 and 14 (2) (b) in 1979; the 1989 Convention on the Rights of the Child; Article 24; the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; Articles 28, 43 (e) and 45 (c) in 1990, and the Convention on the Rights of Persons with Disabilities: Article 25 in 2006.

The authoritative General Comment 14 (2000) further applies the principles of accessibility, availability, appropriateness and assured quality to goods and services, which include essential medicines "as defined by the WHO Action Programme on Essential Drugs".

In October 2011, Anand Grover, the UN Special Rapporteur on the Right to Health, submitted a report to the UN General Assembly which stated, “Criminal laws penalizing and restricting induced abortion are the paradigmatic examples of impermissible barriers to the realization of women's right to health and must be eliminated. These laws infringe women's dignity and autonomy by severely restricting decision-making by women in respect of their sexual and reproductive health” 

General comment No. 22 (2016) on the right to sexual and reproductive health (article 12 of the International Covenant on Economic, Social and Cultural Rights) states that, “Essential medicines should also be available, including a wide range of contraceptive methods, such as condoms and emergency contraception, medicines for abortion and for post-abortion care, and medicines, including generic medicines, for the prevention and treatment of sexually transmitted infections and HIV.”

4-    Responsibility of states to refrain from limiting access to health

States are under the positive obligation to respect the right to health by refraining from limiting access to contraceptives and other means of maintaining sexual and reproductive health such as medical abortions.

The General Comment of the Committee on Economic Social and Cultural Rights on the right to the highest attainable standard of health in the International Covenant on Economic, Social and Cultural Rights paragraph 42 states: “While only States are parties to the Covenant and thus ultimately accountable for compliance with it, all members of society - individuals, including health professionals, families, local communities, intergovernmental and non-governmental organizations, civil society organizations, as well as the private business sector - have responsibilities regarding the realization of the right to health. State parties should therefore provide an environment which facilitates the discharge of these responsibilities.

General comment No. 22 (2016) on the right to sexual and reproductive health (article 12 of the International Covenant on Economic, Social and Cultural Rights) states that:
39. States parties have an obligation to respect, protect and fulfill the right of everyone to sexual and reproductive health.
Obligation to respect
40. The obligation to respect requires States to refrain from directly or indirectly
interfering with the exercise by individuals of the right to sexual and reproductive health. ….
41. The obligation to respect also requires States to repeal, and refrain from enacting, laws and policies that create barriers in access to sexual and reproductive health services.