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

This 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