A landmark legal challenge to relax Northern Ireland’s strict abortion laws has been successful, but doubt remains whether any changes will be implemented.
The challenge was brought by the Northern Ireland Human Rights Commission (NIHRC), which wants access to legal terminations in cases of rape, incest or fatal foetal abnormality.
Judge Mr Justice Mark Horner told Belfast High Court: “In the circumstances, given this issue is unlikely to be grasped by the legislature in the foreseeable future, and the entitlement of citizens of Northern Ireland to have their Convention rights protected by the courts, I conclude that the Article Eight rights of women in Northern Ireland who are pregnant with fatal foetal abnormalities or who are pregnant as a result of sexual crime are breached by the impugned provisions.”
However, DUP MLA and former health minister Edwin Poots has questioned the judge’s assertion that abortion is a human rights issue and said he fully expects Monday’s ruling to be appealed.
“We have a High Court judge in Northern Ireland making a different interpretation that has previously been made in the European courts where they have always made held the line that abortion wasn’t a human right,” he said.
“I would be very surprised if this judgement isn’t appealed, so I think there is a long way to run on this one. I think if I was a medical professional I would be somewhat concerned about [carrying out abortions] in terms of the legislation that currently exists.”
Please read the judgment in full and give it careful consideration before reaching a conclusionMr Justice Horner
Mr Poots added: “Essentially the judge should refer it back to the Executive to do something on it if he feels it isn’t human rights compliant, and he seems to be of the opinion that he can just absorb this himself and decide the way forward, which I think is unacceptable to be honest.”
Unlike other parts of the UK, the 1967 Abortion Act does not extend to Northern Ireland where abortions are banned except where the life or mental health of the mother is in danger. Anyone who performs an illegal termination could be jailed for life. The high-profile judicial review was heard over three days in July.
The case was taken against the region’s Department of Justice (DoJ) which, following a public consultation, had recommended a law change in circumstances of fatal foetal abnormality.
However, the NIHRC said the DoJ had not gone far enough and argued the current law was incompatible with human rights legislation regarding inhuman and degrading treatment, privacy and discrimination.
Judge Horner said without a referendum it was impossible to know how the majority of people viewed abortion and noted there was no political will to change the law.
In cases of fatal foetal abnormality (FFA), the judge concluded the mother’s inability to access an abortion was a “gross interference with her personal autonomy”.
He said: “In the case of an FFA there is no life to protect. When the foetus leaves the womb, it cannot survive independently. It is doomed. There is no life to protect.
“Therefore, even on a light touch review it can be said to a considerable degree of confidence that it is not proportionate to refuse to provide an exception to the criminal sanctions imposed on the impugned provisions.”
The judge also claimed the current law placed a disproportionate burden on victims of sexual crime.
He said: “She has to face all the dangers and problems, emotional or otherwise, of carrying a foetus for which she bears no moral responsibility and is merely a receptacle to carry the child of a rapist and/or a person who has committed incest, or both.
“In doing so the law is enforcing prohibition of abortion against an innocent victim of a crime in a way which completely ignores the personal circumstances of the victim.”
Northern Ireland’s Attorney General John Larkin, the chief legal adviser to the Stormont Assembly, was given special permission to address the court. He said there was no public appetite for a law change and argued that it would take away the rights of disabled unborn children.
The court also took submissions from legal representatives for Sarah Ewart, a 24-year-old woman who went public about travelling to England for an abortion in 2013 after being told her first child had a severe brain malformation and no chance of survival outside the womb. Further submissions were admitted from A number of other pro life and pro choice groups including Precious Life and the Catholic clergy.
The lengthy judgment was read out to a packed courtroom over more than two hours.
Judge Horner urged members of the public to read it in its entirety.
“The judgment is for everyone to read, not just those with legal training,” he said. “Please read the judgment in full and give it careful consideration before reaching a conclusion.”
He asked the Northern Ireland Human Rights Commission (NIHRC) and the NI Department of Justice to make further submissions to the court on whether the existing legislation could be interpreted in a way that makes it compliant with the European Convention on Human Rights.
The NIHRC said legal proceedings had been launched as a last resort.
Speaking outside the court, Les Allamby, chief commissioner described the judgment as “historic”.
He said: “We welcome today’s landmark ruling. In taking this case we sought to change the law so that women and girls in Northern Ireland have the choice of accessing a termination of pregnancy locally in circumstances of fatal foetal abnormalities, rape or incest, without being criminalised for doing so.”
Breedagh Hughes of the Royal College of Midwives (RCM) said: “The failure by the Northern Ireland Assembly to resolve this issue and legislate on it, or even to provide guidance as to how the law should be applied in clinical practice, has left midwives and other health care professionals in a very difficult position, for a very long time. Consequently, today’s ruling is extremely welcome. It now gives midwives and other health professionals legal protection and a release from the fear of prosecution. This will enable midwives to offer women who have a diagnosis of fatal foetal anomaly the appropriate care, support and advice that they also have often been denied because of the Assembly’s inertia.”
The RCM director said she expected health professionals to respond immediately to the judge’s final decision - which is expected to be announced later this month - and offer terminations in the specific circumstances as outlined.
However, she said, no one should, or will be, forced to provide termination services against their religious or moral beliefs, and said the Executive needed to issue long-awaited guidance.
“The statutory right to exercise conscientious objection is contained in the 1967 Abortion Act [as operated in GB]. This judgement today leaves those people who wish to exercise a conscientious objection no worse off, but no better off”