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The Sanctity of Life? An Update on Abortion Law in Northern Ireland

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About The Author

Francesca Norris (Solicitor Outreach)

Francesca is a trainee solicitor at a leading national firm, having undertaken the GDL subsequent to graduating with a Combined Honours in Arts from Durham. Her primary areas of interest are human rights, public law, clinical negligence, and criminal law.

It is of great importance to note that these are ancient questions in which millions in the past have taken diametrically opposite views and still do.

Lord Steyn

On 30 November 2015, the High Courted handed down judgment in The Northern Ireland Human Rights Commission, Re Judicial Review [2015], a landmark judicial review case brought by the Northern Ireland Human Rights Commission on the matter of the law on termination of pregnancy in Northern Ireland. Horner J cited the Lord Steyn’s judgment in R (Pretty) v DPP [2001] relating to assisted suicide, drawing a comparison between the sentiments applicable to that issue and to the issue of abortion. Horner J set out that:

Any issue involving abortion is always highly contentious. It inevitably raises philosophical, moral, social, religious, political and other matters that are extremely divisive. One of the foundations upon which the common law is built is the principle of the sanctity of life…One of the other foundations of the common law is the principle of personal autonomy, the right of self-determination. Those in favour of abortion in the exceptional circumstances put before the Court rely on personal autonomy. Those against abortion call in aid the sanctity of life. One of the tasks of this Court is to place these principles in their proper context.

The task of balancing considerations of the sanctity of life, particularly in the context of unborn children, is made all the more complex when set against the backdrop of religious strife in Northern Ireland, as demonstrated by the reactions of some organisations to the ruling. LIFE Northern Ireland spokesperson Marion Woods has said:

The majority of people in Northern Ireland continue to believe in the intrinsic value of human life from conception. Human life begins in the womb. How then can the right to protection of human beings in the womb be incompatible with human rights? Even if an individual’s human rights under Article 8 is engaged, it does not trump a child’s right to life. The first and most fundamental human right should be the right to life.

The debate over the legal position of those seeking an abortion in Northern Ireland is indeed a fractious and emotive one, driven often by deeply entrenched beliefs and values. This article will have a look at the recent judgment and consider what effect it has upon the law governing abortions in Northern Ireland, and what impact this may in turn have on millions of Northern Irish women.

The Legal Position in Northern Ireland

As explored in a previous Keep Calm Talk Law article from November 2014, ‘Decriminalisation of Abortion’, the Abortion Act 1967 (as amended by the Human Fertilisation and Embryology Act 1990) legalises abortion until the end of the 24th week of pregnancy in Great Britain (England, Wales and Scotland), provided that certain conditions are met. These conditions are not overly onerous: the procedure must be carried out by a registered medical practitioner and two doctors must agree that the termination of the pregnancy is likely to be less harmful to the woman’s physical or mental health than continuing with the pregnancy would be.

In Northern Ireland, however, the 1967 Act is not in force, despite a number of attempts to extend it, owing in large part to the domination of religious considerations within Northern Irish politics. Instead, issues surrounding abortion remain governed by a much older piece of UK legislation, s.58 of the Offences Against the Person Act 1861, which criminalises both the woman seeking an abortion and the practitioner carrying it out and provides for a sentence of life imprisonment for both. This is supplemented by s.25 of the Criminal Justice Act (Northern Ireland) 1945, which sets out the offence of child destruction. As such, abortions are only ever permitted in Northern Ireland if a woman’s life is in danger or there is a risk of serious and permanent damage to her health that would render her a ‘physical or mental wreck’, per the so-called ‘Bourne judgment’ of 1938.

In practice, what this has meant is that thousands of Northern Irish women who would not meet the narrow – and narrowly-applied – criteria set out above have had to make the journey to the UK, often alone and in secret, to terminate their pregnancies, with the effect that those who can afford to pay for the plane fare and potential hotel costs are able to have an abortion, whilst those who cannot, are not. With average pay rates in Northern Ireland lower than throughout the rest of the UK, these travel costs could make a significant, and ultimately unaffordable, inroad into a woman’s wages.

One side-effect of the Northern Irish ban is that more women end up having later-term, riskier abortions. Mara Clarke of the Abortion Support Network, which provides guidance and assistance to those who are forced to travel to Great Britain for a termination, states that ‘Fewer than 1.4% of abortions in England, Scotland and Wales happen at over 20 weeks. With our clients, it’s 8%, because they spend so long trying to raise the money.’

Indeed, a report compiled by a United Nations committee of 18 independent experts as part of the Human Rights Committee’s periodic report of the UK in August 2015 expressed concern about the dangers posed by Northern Ireland’s ‘highly restrictive’ abortion laws, setting out that the committee were:

concerned about the highly restricted circumstances in which termination of pregnancy is permitted under the law in Northern Ireland, and about the severe criminal sanctions for unlawful abortion, thus putting women’s life and health at risk and forcing them to travel in order to seek abortion.

The committee also noted with concern that the Department of Justice for Northern Ireland had indicated in April 2015, following a consultation on the possible decriminalisation and legalisation of abortion in cases of fatal foetal abnormality and pregnancy as a result of rape or incest, that it would propose legislation to legalise termination of pregnancy only in circumstances of fatal foetal abnormality due to “complex issues” raised by pregnancy as a result of sexual crimes.

The report concluded with recommendations that the Northern Irish legislation be amended as a matter of priority to provide for further exceptions to the legal ban on abortion in the country. Amnesty International have also campaigned for a change in the law, citing the UK’s commitment to international agreements protecting the rights of women and girls to life and health.

The Application for Judicial Review

The Northern Ireland Human Rights Committee (NIHRC) had repeatedly advised the NI Department of Justice that current legislation violated the human rights of Northern Irish women and girls, violating Articles 3, 8 and 14 of the European Convention on Human Rights. It is argued that the Article 3 right to freedom from torture and inhuman or degrading treatment or punishment is violated by legislation that effectively forces a woman to carry a baby against her will (degrading treatment); that the Article 8 right to private and family life free from interference from a public authority except when necessary in the interests of public safety or national security is contravened by the unnecessary imposition of these laws; and that the Article 14 right that the other rights in the convention should be secured free from discrimination on any of the grounds set out is violated as the laws only impact upon the rights of women, and so necessarily discriminate on the basis of sex.

In December 2014 the NIHRC initiated legal proceedings against the DoJ to this end. In February 2015 they successfully applied for leave to judicially review the law on termination of pregnancy in Northern Ireland at the High Court, and the matter was heard at the High Court in Belfast on 15-17 June 2015, with judgment being reserved until a later date. In the judgment delivered on 30 November, Horner J concluding that:

…the failure to provide exceptions to the law prohibiting abortion in respect of FFAs [fatal foetal abnormalities] at any time and pregnancies due to sexual crime up to the date when the foetus becomes capable of an existence independent of the mother, is contrary to Article 8 of the Convention.

NIHRC Chief Commissioner, Les Allamby, welcomed the ruling, stating that the result was ‘historic, and will be welcomed by many of the vulnerable women and girls who have been faced with these situations’.

What does the judgment mean for women seeking abortion in Northern Ireland?

Immediately, not much. The ruling itself has no impact upon the position of most women seeking a termination, applying to a very limited number of cases of unwanted pregnancy. Figures relating to terminations carried out throughout England and Wales in 2011 suggest that the vast majority, around 98%, of abortions are carried out on the relatively flexible ground that continuing with the pregnancy would involve greater risk to the mental or physical health of the mother than terminating it, rather than issues of likely death or serious and permanent injury to her.

It is also unclear at this stage whether new legislation will need to be passed by Stormont to incorporate the ruling, as Horner J suggested that a referendum might have to be held to enact his conclusions on reforming local abortion law, or whether the ruling itself will be enough to decriminalise abortions in cases of severe foetal disability, incest and rape. If Stormont’s involvement is needed, further delay is likely as the Northern Irish government remains vehemently opposed to legalising abortion, with Attorney General John Larkin expressing his ‘profound disappointment’ at the ruling and former Health Minister Edwin Poots arguing that it had always previously been held in the courts that ‘abortion wasn’t a human right,’ sentiments which appear largely in keeping with the conservative and draconian stance of the country’s legislators to date. The Department of Justice also have six weeks in which to decide whether or not to pursue an appeal against the ruling.

However, in the wake of the ruling on 1 December 2015, Northern Ireland health minister Simon Hamilton circulated draft guidelines on current abortion law and practice to colleagues, stating that these will be made public following their consideration by the Northern Ireland Executive. Perhaps this indicates that there is an anticipation, after all, that Northern Ireland’s law will be amended to reflect the law in the remainder of the United Kingdom, enabling Northern Irish women to undergo terminations within their own country, albeit only in the most exceptional of circumstance.

Conclusion

For many campaigners, today’s ruling is a first major victory on a long path to reform Northern Irish law so that the rights of girls and women are protected. Sarah Ewart, whose evidence was presented to the court in support of the NIHRC’s application, travelled to England to undergo an abortion after being informed that the foetus had anencephaly, a malformation of the brain and skull meaning that there was no chance of survival outside of the womb, and that she risked being poisoned herself if the foetus died in utero. Speaking following the judgment, she said:

I hope 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.

I, and many women like me have been failed by our politicians. First, they left me with no option but to go to England for medical care. Then, by their refusal to change the law, they left me with no option but to go to the courts on my and other women’s behalf.

I am an ordinary woman who suffered a very personal family tragedy, which the law in Northern Ireland turned into a living nightmare.

The judgment of Horner J may not be able to bring Northern Irish legislation totally in line with the law of the rest of the United Kingdom, but it does demonstrate, at least, a receptiveness from those in positions of authority to take on board the concerns of women like Sarah Ewart, and will surely only strengthen the resolve of those who campaign against the anachronistic ban and the limitations it necessarily creates on a woman’s autonomy over her own body. Perhaps, finally, an end to this legal ‘nightmare’ is in sight.

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Tagged: Family Law, Human Rights, Medical Law & Ethics

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