Northern Ireland’s Human Rights Commission Granted Leave for Judicial Review to Challenge the Country’s Near-Blanket Ban on Abortion
Unlike the rest of the UK, Northern Ireland is not covered by the Abortion Act 1967. If you are a woman living there who wishes to terminate a pregnancy, the law offers you almost no choice: you must give birth unless there is risk to your life or serious damage to your health. Against the backdrop of ongoing controversy, several high profile cases and a public consultation on the issue, the Northern Ireland Human Rights Commission (NIHRC) has just been granted leave by the High Court in Belfast to challenge the current law on abortion.
The NIHRC is tasked with reviewing the adequacy and effectiveness of law and practice relating to the protection of human rights under s.69(1) of the Northern Ireland Act 1998. Initiating proceedings “as a last resort” this week, the NIHRC challenged the legality of Northern Ireland’s abortion law on the basis that it fails to allow termination in circumstances of serious malformation of the foetus, rape and incest, making it incompatible with article 3 (prohibition on torture), article 8 (right to respect for private and family life) and article 14 (prohibition on discrimination) of the European Convention on Human Rights (ECHR).
As confirmed by Lord Justice Girvan in Society for the Protection of Unborn Children for Judicial Review , the current legal position on abortion in Northern Ireland is governed by s.58 of the Offences Against the Person Act 1861, as interpreted in R v Bourne  3 All ER 615, and s.25 of the Criminal Justice Act (NI) 1945. It is unlawful to terminate a pregnancy unless it is necessary to preserve the women’s life or there is a risk of real and serious adverse effect on her health.
This near-blanket ban has sparked heated, often bitter, debate amongst policy-makers and groups advocating the rights of women and of children. Last year the director of ‘Precious Life’ was convicted of harassing Dawn Purvis, director of the pro-choice Marie Stopes Clinic. Responding to the court’s grant of leave, the Social Democratic and Labour Party, Northern Ireland’s third largest party in the devolved parliament, has already boldly asserted that it is “unequivocally opposed” to changing the law, even in cases of rape or lethal foetal abnormalities.
The law was thrown into particularly sharp relief recently, though, by the high profile case of local women, Sarah Ewart, pregnant with a baby suffering from anencephaly, a lethal developmental condition that often results in a baby being born without the front part of the brain and skull. Having made the extremely difficult decision to abort the pregnancy, Sarah went public, appearing on local television to describe the trauma and stress caused by having to travel to England to have the procedure, leaving behind the support of her medical team, close family and friends when she needed them most.
Cases such as Sarah’s proved enough to encourage the Department of Justice to engage in a public consultation on reforming the criminal law on abortion in Northern Ireland, to consider allowing abortion in the “very narrow range of cases” where 1) there is a diagnosis during pregnancy of a fatal abnormality with the foetus and 2) where women have become pregnant as a result of rape.
In court, the Department of Justice was defensive of its consultation and critical of the “pre-emptive” legal challenge brought while the consultation process was still ongoing. The NIHRC, however, was not satisfied that the consultation was sufficient to protect the rights of women granted under the ECHR. It was argued that the consultation does not commit the Department of Justice to make the necessary changes to the law. Further still, it only seeks public opinion on cases of rape or incest, without setting forth legislative changes.
The NIHRC’s arguments found favour with Justice Treacy, who acknowledged that it raised issues of considerable public importance. The full hearing has been listed for June of this year. For now, women in Northern Ireland face the predicament of having to give birth to a child they might otherwise have terminated or, alternatively, to bear the considerable cost, stress and discomfort of travelling across the Irish Sea to exercise a right of choice protected elsewhere in the UK.