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Supreme Court rules current Northern Ireland abortion law is in breach of human rights in relation to cases of rape, incest or fatal foetal anomaly

A landmark Supreme Court judgment has said that women in Northern Ireland have suffered 'untold suffering and desolation' because of the abortion law in the Province

Women holding banners at abortion rights protest

7 June 2018

In a landmark judgment handed down today, the Supreme Court has ruled that the current Northern Ireland abortion law with regards to cases of rape, incest, or fatal foetal anomaly is in breach of the European Convention on Human Rights (ECHR) and causes women in the province to endure 'untold suffering and desolation'.

Lawyers, from Leigh Day, represented a coalition of healthcare charities and women’s rights organisations who intervened at the Supreme Court hearing in October 2017 alongside the Northern Ireland Human Rights Commission (NIHRC), as the core applicants in the hearing, that the current legal framework in Northern Ireland breached human rights law. 

The organisations represented by Leigh Day included: The Family Planning Association (FPA), the British Pregnancy Advisory Service (BPAS), Birthrights, the Abortion Support Network, Royal College of Midwives, Alliance for Choice, and Antenatal Results and Choices (ARC).

Rosa Curling from law firm Leigh Day who represented the coalition of organisations said:

“This is a momentous day for women in Northern Ireland. There are no longer any excuses for Theresa May’s Government to deny the same rights to women in Northern Ireland as are granted to them in every other part of the United Kingdom. 

“The Prime Minister must now act to ensure that the UK Government is no longer acting unlawfully by breaching the human rights of women across Northern Ireland.”

Abortion is unlawful in Northern Ireland unless it is necessary to preserve the life of the woman, carrying a potential sentence of up to life imprisonment.

A High Court judge in Northern Ireland ruled in 2015 that that the current law in Northern Ireland was in breach of the ECHR in cases of fatal foetal abnormalities or where women are pregnant as a result of sexual crime. 

The Northern Ireland Department of Justice and the Attorney General successfully appealed this ruling. Consequently, the NIHRC took their case to the Supreme Court. In today’s judgment Lady Hale stated:

“I have reached the following conclusions (i) that the NIHRC does have standing to challenge the legislation in question here; (ii) that, in denying a lawful abortion in Northern Ireland to a woman who wishes it in cases of rape, incest and fatal foetal abnormality, the law is incompatible with article 8 of the Convention; and (iii) that it will also operate incompatibly with article 3 of the Convention in some cases.” [Para 35]

On the question of the urgency of action needed by the Governments in Westminster and in Stormont, Lady Hale went on to state:

“…Should this Court leave the position in relation to these categories to be considered further whenever the Northern Ireland Assembly resumes operation and receives whatever report or recommendations the working group presents? First, there is the consideration that it is unclear what will happen in Northern Ireland, in particular whether and when the Assembly will resume its operations. But this is not itself decisive. What is clear is that the issue has been under discussion for some five years, since it was first raised by the Commission, without any definite upshot. Further, if we were to refrain now from any conclusion on it, or were to defer to the Assembly for the time being, in order for it to reach and express its own definitive position, we would have in my opinion to do so on the basis that it would then still be open to a person affected to return to court to have the matter finally resolved, if the legislature did not amend the existing law in the three areas identified. In my opinion, that is not an appropriate course, as the need for such amendment is evident and the outcome of any further litigation would in that respect be inevitable. I am in short satisfied that the present legislative position in Northern Ireland is untenable and intrinsically disproportionate in excluding from any possibility of abortion pregnancies involving fatal foetal abnormality or due to rape or incest... Those responsible for ensuring the compatibility of Northern Ireland law with the Convention rights will no doubt recognise and take account of these conclusions, at as early a time as possible, by considering whether and how to amend the law, in the light of the ongoing suffering being caused by it as well as the likelihood that a victim of the existing law would have standing to pursue similar proceedings to reach similar conclusions and to obtain a declaration of incompatibility in relation to the 1861 Act.” [Para 135]

Lady Hale concludes in the judgment:

“We need to be clear about what the current law requires of women in this context. It is not less than that they cede control of their bodies to the edict of legislation passed (in the case of the 1861 Act) more than 150 years ago and (in the case of the 1945 Act) almost 75 years ago. Binding the girls and women of Northern Ireland to that edict means that they may not assert their autonomy in their own country. They are forbidden to do to their own bodies that which they wish to do; they are prevented from arranging their lives in the way that they want; they are denied the chance to shape their future as they desire. If, as well as the curtailment on their autonomy which this involves, they are carrying a foetus with a fatal abnormality or have been the victims of rape or incest, they are condemned, because legislation enacted in another era has decreed it, to endure untold suffering and desolation. What is that, if it is not humiliation and debasement?” [Para 261]

Counsel for the coalition of healthcare charities and women’s rights organisation are Jude Bunting from Doughty Street and Dinah Rose QC from Blackstone Chambers.

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