High Court rules NI abortion legislation breaches Article 8 of European Convention on Human Rights

Belfast Royal Courts of JusticeThis morning’s High Court judgement [summary + full text] held that the abortion legislation in Northern Ireland breaches Article 8 of the European Convention on Human Rights by failing to provide an exception to the prohibition on abortion in cases of a foetal fatal abnormality (at any time during the pregnancy) or where the pregnancy is the result of sexual crime (up to the date when the foetus is capable of existing independently of the mother).

The application by Northern Ireland Human Rights Commission also covered the rights of women in Northern Ireland where there is a serious malformation of the foetus. However, the judgement concluded that there is no agreement amongst medical practitioners on what constitutes a serious malformation of the foetus.

NIHRC’s chief commissioned Les Allamby described it as a “landmark ruling”. The commission sought to change the law “so that women and girls in NI have the choice of accessing a termination of pregnancy locally in circumstacnes of fatal foetal abnormalities, rape or incest, without being criminalised for doing so”.

We are pleased that today the High Court has held that the current law is incompatible with human rights … Today’s result is historic and will be welcomed by many of the vulnerable women and girls who have been faced with these situations.

Around thirty members of the public and ten journalists listened to large chunks of the long judgement being read out in court over ninety minutes this morning. With only three rows of pews, a Catholic priest and a prominent ant-abortion campaigner sat alongside Amnesty staff and the Human Rights Commissioner.

Amongst the judgement’s references to international law, individual Articles within the European Convention and its appliance in other European jurisdictions, a mini-critique of an opinion piece by Fintan O’Toole, mention of John Milton’s Paradise Lost, and the waiving away of the significance of opinion polling to gauge societal, there was mention of the local political situation.

It was noted that in an April 2015 interview, First Minister Peter Robinson indicated that the Department of Justice’s proposals for the reform of the law in Northern Ireland were “doomed”. Mr Justice Horner commented:

This unavoidable inference from the inaction of the Department to date and the comments of the First Minister is that the prospect of any consultative paper, never mind legislative action on pregnancies which are the consequence of sexual crime, is even more gloomy.

Later in his judgement, Mr Justice Horner noted that this application fell into the category of “difficult or unpopular” decisions that can be more easily grasped by the judicial system that legislatures, providing a detached view, albeit not accountable to the electorate.

Amnesty’s My Body My Rights campaign manager Grainne Teggart reacted to the judgement saying:

Today’s court decision is a damning indictment of the Northern Ireland Executive’s failure to prioritise women’s healthcare. It’s shameful that the Courts have had to step in because politicians have repeatedly failed Northern Ireland’s women. Northern Ireland’s abortion laws must be brought into the twenty-first century and into line with international law as a matter of urgency.

Sarah Ewart’s first pregnancy was given a fatal foetal diagnosis and had to travel to England to terminate her pregnancy since NI laws didn’t permit her to receive medical treatment. She reacted to the judgement:

I hope that today’s ruling means that I, and other women like me, will no longer have to go through the pain I experienced, of having to travel to England, away from the care of the doctors and midwife who knew me, to access the healthcare I needed.

Mr Justice Horner noted that while pre-natal life does not enjoy full Article 2 protection in the UK, there is a legitimate aim to protect it where that foetus will be viable but the unborn child faces non-fatal disability:

There should be equality of treatment between, on the one hand, the foetus which will develop into a child without physical or mental disability and, on the other hand, the foetus which will develop into a child with a physical and/or mental disability which is non-fatal. However, it is illegitimate and disproportionate to place a prohibition on the abortion of both a foetus doomed to die because it is incapable of an existence independent of the mother’s womb and the viable foetus conceived as a result of sexual crime.

While there was evidence that forcing young women to travel to GB can have the consequence of imposing an intolerable financial and mental burden on those least able to bear it, there was “not one iota of evidence” that the imposition of criminal sanctions on these women in these exceptional cases has resulted in the saving of any pre-natal life.

For women without family or charitable support, such criminal provisions requiring them to travel to have an abortion would impose a heavy financial burden upon them which would weigh heavier on those with limited means:

The protection of morals … should not contemplate a restriction that penalises the impoverished but can be ignored by the wealthy. It is surely not controversial that requiring women in these exceptional categories to go to England, that is those carrying FFAs and those pregnant as a result of sexual abuse, will place heavy demands on them both emotionally and financially.

While the matter could be left to the Supreme Court to decide, it was better to for the High Court to give a “local” view. [Ed – Perhaps a veiled reminder that a London court would be less likely to understand or take into account the local sensibilities in NI, with a greater likelihood that GB legislation would be applied to NI.]

No party to the application and no argument made in court addressed whether it is possible to read the current legislation in such a way to ensure no offence is committed in respect of the termination of FFAs and pregnancies due to sexual crime before the foetus is able to exist independently of the mother.

Parties have until 9 December to make further submissions on this topic, and a final view on the what relief should be applied is expected before Christmas.

It is thus possible that it may not even be necessary for the Assembly to legislate in reaction to this judgement.

Evangelical Alliance NI’s Peter Lynas responded to what he called  “a confused judgement”:

… the Judge ruled that a “foetus does not have a right to life under Article 2”, but that “pre-natal life here is given protection under certain statutes.” The Court appears to be dictating when the unborn baby has a right to life. At the same time the judge has worryingly reduced a mother to ‘merely a receptacle’. It is alarming that human rights are being used to end human life.

Political reaction is likely to be muted. While some politicians will disagree with the ruling, many will be content that the action taken by NIHRC has taken the hot potato off Stormont’s table will allow politicians to move on. The judge’s references to other contentious moral issues in his judgement are a reminder that this will not be the last time the courts compensate for frustrated political machinery.

Photo – Kenneth Allen via Wikipedia

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  • Kevin Breslin

    On the Human Trafficking/Prostitution issue didn’t Sinn Féin back the Morrow Bill eventually with the SDLP, as did the Alliance Party to some extent? Even Women’s aid.

  • Cosmo

    his last sentence, critiquing our convenience-orientated society that cares little for the life or welfare of others, implies he knew a society that is better.
    his reference to ‘ a flood of abortions for the most trivial of reasons’ is an authoritarian dislike of pregnant women making decisions. And l was reminding him of some consequences of authoritarian strictures for women of child bearing age in the past.
    Do you agree with my practical suggestion that we should prioritise concern for vulnerable children who are already born ?

  • Croiteir

    So it was a strawman argument. That in itself does not necessarily mean what you have deduced it to mean.
    I also reject your interpretation his remark is an authoritarian dislike of women. You are making more leaps here than a flea on a hotplate.
    I do not agree with your last statement as it implies that we should have less concern for unborn children. Now that may well reveal a dislike of pregnant women who need medical assistance to ensure both their health and their childs. It is impractical.

  • Cosmo

    As you know, I referred to an authoritarian dislike of pregnant women making decisions.
    What do you think is the psychopathology of those people who wish to reduce choices and options for women who are pregnant, by law, and refer to their decision-making as merely
    ‘trivial’ ?

  • Korhomme

    That’s an interesting thought about rape. It’s certainly possible that she is defending herself, though I would have thought that she is also transferring the personality and activities of her rapist onto the foetus. That is, she could believe that the result of her pregnancy could be another (potential) rapist. Or perhaps it is a ‘cleansing’ ritual.

    As far as being human is concerned, and the sanctity of life, we must ask ‘what is human’? Of course, we all know what human is, but defining it is so much harder. If we say ‘sentient’, what happens when we are asleep? If we say ‘independent’ what of those people who through illness or injury who aren’t independent? An anencephalic foetus doesn’t have a brain, the seat of the senses. Is it still human?

    When does a human life begin? Once, it was said, with ‘ensoulment’, now it is at the “moment” of fertilisation. Yet it is clear that the embryo and the foetus cannot exist separately from the mother until a late stage of pregnancy; and the newborn person is likewise totally dependent on others.

    If the ‘sanctity of life’ is your position, it is a perfectly respectable one. However, it is (might be) your position and not that of others. Why, therefore, can those who accept this position and affirm it, deny the positions of other people?

    Choice you said earlier is awkward; but yet, as I understand your position, you would approve of the denial of choice to those who don’t share your viewpoint. Why is such a morality better than that of others, rather than being simply different?

  • chrisjones2

    The law has changed because the High Court is about to determine it is incompatible. Unless that is overturned Government must interpret the law in line with the ECHR local legislation not withstanding

  • chrisjones2

    No…the state run NHS will have to comply too

  • chrisjones2

    No..its her body at all times and her right to choose.

  • chrisjones2

    Its not a child its a foetus with the capability of becoming child in some cases and not (sadly) in others

  • chrisjones2

    The Court wont have a problem.I believe they even publish guidance for judges on the amounts for different types of damages

  • chrisjones2

    I assume it depends what kills her but yes – wasn’t it once within a year and a day of the act?

  • Kevin Breslin

    It is strange that the Article 8 right (effectively right to a private life) applies so differently across Ireland when there was an Article 8 case taken against the Republic.

  • Croiteir

    Proximity is not just by date – it is quite complicated

  • Croiteir

    I do believe that human life begins with conception. The choice off others who do not accept that is extremely complex. There is a plethora of opinion as to what a fetus is and how it is to be treated. In fact some are promulgating that a new born is not yet a human, or at least, not allowed to avail of the protection of the law that adult humans should have. So I do believe that morality of that position is not equivalent to mine. I do not accept the precepts of moral relativism, so I have no problem saying to those that do not afford the fetus the status I do that they are wrong and their stance is also wrong and therefor invalid. Hence the choice argument fails.

  • Croiteir

    I do not know anyone who calls any pregnant womans decision making as trivial, do you?
    However the law does restrict the options and choices of women throughout the western world.

  • Korhomme

    You make your position transparently clear, Croiteir.

    Were you to as me the same question, I could not answer so definitely; I am not sure when “life” begins. I cannot accept that a multicellular blastocyst is “human”, yet I cannot be sure when this collection of cells becomes “human”. In a way, I wish for the certainty that you have.

    Your position would make abortion logically impossible, the destruction of a life; that is entirely respectable.

    However, it does not answer the question of how abortion relates to others. You may consider your views to be superior to those of others; but yet, you cannot ignore other voices.

    How can it be, that your views—I accept that they are based on a (theological) logic that I cannot disprove—must outweigh the views of others that I cannot accept; we have very differing views, but I cannot say that my views are better than yours anymore than you can say that yours are superior to mine.

    I do not wish to deny you personally the power of choice; but, as I understand your position, you would deny choice to others. Why?

  • Croiteir

    I thought that I had answered why. But anyway let me take you from the philosophy behind my reasoning.

    I do not believe in moral relativism as I said. I believe that we need an external measure of morality, traditionally that would have been, in these climes, the Judeo-Christian morality, the Decalogue and so on, perhaps for others after the Enlightenment the works of Kant and the secular utilitarians such as Mills. However it was not individualistic.

    Now that was challenged by the likes of existentialists such as Sartre, he believed that no one could be judged from any position but his own therefore the only thing that can authenticate my moral judgment is my choice that those are my judgments. This is of course severely flawed. I would hazard that this may be your position. Clearly wrong as it means that the difference between a moral and immoral person is the person who makes a commitment of his desire is the moral person. It abandons you to your passions.

    This however has become the accepted view in the west. I believe that this was due to the collapse of empire, but that is another story. The subjective view has, paradoxically, become the new objective. It is wrong not to believe that all morality is equivalent in validity. Therefor the objective view is wrong. The tangled webs we weave when our aim is to be liberal.? No you surely can see what I was getting at when I said that choice is an awkward thing. It is when you are a liberal even if you do not understand why.

    This then takes us up to the disgraceful judgement of the High Court. As an objective view is wrong when the case hit up against the dictats of the ECHR the judges reproached for the defendant saying that they are discriminating against people who don’t share their values. It becomes ever more difficult to retain those objective views of what morality is without being condemned on moral grounds for having those views.

    This is the sort of paradoxical thinking, making a certain kind of subjectivity into an objective morality, that you see in Nietzsche. What mattered, he said, “is to will your own desire as the law”, this doctrine of liberation, (also echoed in the infamous “do what thou wilt” of Alisteir Crowley as being the whole of the Law of his Thelema cult), becomes one of condemnation of those who have an objective view as it hides itself under the false flag of human rights in the European project.

  • Korhomme

    Thanks, Croiteir.

    I might well be a ‘liberal’, but if so I come to it from a different perspective—you might think it a muddled collection of thoughts, not a philosophy.

    Rather, I’d say I was independent, pragmatic and empirical; and if ‘facts’ change, my opinion might well change.

    In regard to abortion, I see it as something which has existed for all of history; that is, there is a continuing demand, for whatever reason. Further, making things that people like, need or want illegal does not mean that the things will go away; rather, it almost invites criminals to take over the activity—Prohibition is a classic example. So, if abortion is made illegal, women will still want it, and will rely on home remedies or the woman in the backstreets with her bent knitting needle. Therefore, I would prefer abortion to be performed in clean surroundings. That doesn’t mean that I like abortions. I do know some who perform abortions (not in Ireland); they do not like performing them, but judge that they should not hold their view above that of the patient’s.

    I’d also say that we must agree to disagree here; it’s not that one of us is ‘wrong’ and the other is ‘right’, rather we have ‘different’ views.

    (There can’t be many novels which have abortion as a theme. This is one:

    http://www.amazon.co.uk/Dirty-Work-Gabriel-Weston/dp/022409128X/ref=tmm_hrd_swatch_0?_encoding=UTF8&qid=1449139711&sr=1-3

    The narrator is a female abortionist; it explores what can happen when things go wrong.)

  • Croiteir

    Of course you are independent – that is the relativists position, he will decide what is moral.

    I to agree that as facts change the position will shift, hence the early position on “quickening”. Once the fact changed, ie once science informed then the position on when life started changed, but the position on the rights of the human being, and thus the duty it imposed, did not. So I would agree with that.

    The it has always existed argument also fails – slavery.

    As for the different views argument that is just logical nonsense. Socrates answered Protogoras on that one years ago,

    Protagoras: Truth is relative. It is only a matter of opinion.
    Socrates: You mean that truth is mere subjective opinion?
    Protagoras: Exactly. What is true for you is true for you, and what is true for me, is true for me. Truth is subjective.
    Socrates: Do you really mean that? That my opinion is true by virtue of its being my opinion?
    Protagoras: Indeed I do.
    Socrates: My opinion is: Truth is absolute, not opinion, and that you, Mr. Protagoras, are absolutely in error. Since this is my opinion, then you must grant that it is true according to your philosophy.
    Protagoras: You are quite correct, Socrates.
    But then the moral relativists dealt with Socrates the same way that they do now, by objectivising subjectivity. Hence the decision in the High Court.

  • Croiteir

    At all times? so you would have abortion up to the point of birth?

  • Croiteir

    You seem to have a better appreciation of the law than Bryce Dickson.

  • Croiteir

    There will not – it has not yet changed the law

  • Croiteir

    You were following the run of the thread?

  • Croiteir

    Why not?

  • Korhomme

    Alas, Croiteir, as an autodidact in relation to logic and philosophy, I’m only too aware of my failings in this area.

    But, I’m also aware of the failings of rationality; that it can be ‘bounded’, even if I’m not so clear what this is; and even more so I’m aware of ‘cognitive bias’ and ‘cognitive dissonance’. Your philosophy would, as I understand it, exclude this—and the distinctly unhappy results of Stanley Milgram’s experiments, and the ‘Standford Prisoners’ experiment—we might all aspire to higher things, but we are human and fallible.

    ((I said earlier that I was an ‘Empiricist’. This is correct but incomplete; I was called out, via Twitter, as an ’empirical reader’. The person who so called me out, who is alarmingly intelligent and perceptive, then sent lots of stuff about Umberto Eco, who seems to have been the first to describe the condition. She also suggested that I should do courses in logic and philosophy. Anyway, these exchanges resulted in us meeting a couple of times for lunch. So what about lunch? Rather than continue here, what about a face to face meeting?))

  • Korhomme

    That is from freakonomics. An alternative is that the children were less affected by lead, a known brain poison, from petrol.

  • Croiteir

    Who is to stop us

  • aquifer

    Yep I read the book. But it’s not an alternative explanation, its an ‘and’.
    The lead removal ALSO reduced crime. “The effect of legalized abortion reported by Donohue and Levitt (2001) is largely unaffected, so that abortion accounts for a 29% decline in violent crime (elasticity 0.23), and similar declines in murder and property crime. Overall, the phase-out of lead and the legalization of abortion appear to have been responsible for significant reductions in violent crime rates”
    OK its Wikipedia, but its late. And this is not about logic or social welfare, it is mostly about men having unwarranted power over women.

  • Croiteir

    They will – for loss has to be shown

  • Croiteir
  • Catcher in the Rye

    Yes, that will happen in two weeks’ time.

  • Croiteir

    It may or may not

  • Cosmo

    i hope this valiant child enjoys his life, as this report claims he laughs and giggles, but find it hard to understand how the mother believes he could go to a nursery school next year.
    Judging from the account of his mother not even realising she was pregnant, he was born very premature and kept alive by the skills of the Wishaw Premature Baby Unit.
    sad additional details in the story is that Emma, the mother, already also has a 5 yr old neice, Kayla, with spina bifida. …and that the father is no longer in partnership with the mother – a statistically very common outcome for parents with a child with disability.

    http://www.dailyrecord.co.uk/news/real-life/i-told-new-born-son-6000767

  • Christopher Mc Camley

    Pro-abortion judge rules in favour of abortion shock. I read the judgement and the reasoning is worthy of Winnie the Pooh. Great Britain has abortion, therefore the common law doesn’t recognise unborn life, therefore the common law in Northern Ireland probably doesn’t either, therefore Northern Ireland should have abortion. Being raped is intimate and personal, therefore killing your child should be intimate and personal and protected by privacy. Even though to get the abortion you’ll have to give up your privacy and declare you’ve been raped. A child has a condition and will probably die therefore it’s ok to kill it. Bizarre.

  • Cosmo

    ….all part of God’s plan?