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On the 30th November 2015, following two years of interchange between the Northern Ireland Human Rights Commission and the Government of Ireland, the Belfast High Court passed judgment following an application for judicial review in the matter of the law on termination of pregnancy in Northern Ireland. Mr Justice Horner found that abortion legislation in Northern Ireland breached Article 8 of the European Convention on Human Rights in respect to the right for private and family life, but did not find that to be the case for Articles 3 and 14, consisting of the prohibition of torture and discrimination respectively.
Naturally, a question centered around a delicate subject such as abortion is guaranteed to cause fractious debate. Such is the divisiveness that the European Court in Strasbourg provides a wide margin of appreciation to Member States, whereby each State delineates the boundaries by which abortion can be considered legal and when it should be illegal within the constitutional framework of the State. Thus, in matters such as a right to life under Article 2, Member States are given leeway to determine when human life begins and consequently the legal status of a foetus.
The law currently governing abortions in England, Scotland and Wales, the Abortion Act 1967, does not apply to Northern Ireland; instead, it is considered a criminal offence to procure a miscarriage unless there is a fatal risk to the mother or where the mother would suffer serious, long term harm to her physical and mental health. Specifically then, the question presented before the judge was whether the failure to extend those exceptions, in particular where there is a serious malformation of the foetus (SMF) including fatal foetal abnormality (FFA), or where the pregnancy is a consequence of a sexual crime, represents a breach of those rights enjoyed by all the citizens of Northern Ireland under the ECHR.
Article 3 - Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Jurisprudence in the Strasbourg court makes it clear that if a pregnant woman was entitled to abortion under domestic law, then the State cannot thwart her attempts to access those services to which she was medically and lawfully entitled to. This is demonstrated by a particularly harrowing case; P and S v Poland [2013]where a 14 year old rape victim was obstructed in her attempts to obtain a domestic abortion which she would have been entitled to in Poland. Her mother was misleadingly told that the abortion could lead to her daughter's death, medical notes were released to the press and the domestic court ordered she be placed in a juvenile shelter as an interim measure. As if that were not enough, the domestic authorities had decided to investigate the girl on criminal charges, rather than consider her a victim of sexual abuse. In this case then, there is a clear and concerted attempt to delay the applicants' access to medical services she would lawfully be entitled to.
As for Northern Ireland, there was no evidence presented by the Commission that there were concerted attempts by the Northern Ireland Government to obstruct access to those relevant services. Indeed, there are no such procedures or services within Northern Ireland to provide for those seeking termination of pregnancy in cases involving FFA or for women impregnated as a result of sexual crime. Furthermore, there are no steps taken to prevent those women seeking an abortion abroad, particularly in Great Britain. It would also be disingenuous to say, as Mr Justice Horner acknowledges, that a woman seeking an abortion abroad as a result of a consensual relationship or contraceptive malfunction, might not also suffer a similar amount of stress. It was for these reasons then that Mr Justice Horner did not find a breach of Article 3.
Article 8 - Right to Respect for Private and Family Life
Everyone has the right to respect for his private and family life, his home and correspondence...
The question as to whether failure to provide exceptions to the ban on abortion breached Article 8 presented a rather trickier problem to the Court since there is limited guidance from Strasbourg jurisprudence on such matters, thus leaving the Court to form its own view. Mr Justice Horner did consider it a legitimate aim to keep in place a prohibition on abortion where the foetus will be viable but the unborn child faces non-fatal disability, noting that there should be equality of treatment between a foetus that will develop into a child without a physical or mental disability and a foetus that develops into a child with a physical and/or mental disability. Conversely, it was considered illegitimate to place a prohibition on the abortion of both a foetus with a FFA and a viable foetus conceived as a result of sexual crime. In regards to the latter, the Court argued that a blanket ban on abortion, reinforced with criminal sanctions, could not be considered proportionate when balancing the rights of a woman carrying a foetus for which she bears no moral responsibility against that of the foetus, incapable of an independent existence for many weeks into the pregnancy. As to the former, the balance is more tentative; while criminalisation of abortion in SMF cases was argued to interfere with a woman's autonomy, regard has to be given to the foetus that has the potential to develop into a child that, despite having to cope with a mental and/or physical disability, will be able to enjoy life.
A Case for Judicial Activism?
In finding a breach of Article 8, Mr Justice Horner suggested that the legislation could be read in compliance with Convention rights, but no arguments were put forward by the Commission for this to be the case, thus leaving Mr Justice Horner to grant a further opportunity for the parties to make submissions on this issue. He did intend however to make a declaration of incompatibility, which would precipitate a change to the current legislation in the Northern Ireland Assembly. It appears inevitable then that this decision is to be revisited in the Court of Appeal and in the meantime, it remains advisable for those seeking an abortion in cases involving the criteria mentioned here to continue to do so abroad.
Mr Justice Horner made it clear that it was not the role of the court to develop 'new, all-embracing principles of law where society is substantially divided on the issue'. This case is not about a general right of abortion in Northern Ireland. At the same time however, he also acknowledges that progress with any controversial measure, particularly one such as abortion, will be slow. There is no reason to suggest that the legislature is prepared to solicit progress when a Guidance Document regarding the current laws on abortion takes eight and a half years to make and still manages to omit information in regards to those women impregnated as a consequence of sexual crime. It makes sense then that such a discussion can only truly be furthered within the remit of the judiciary as it is not subject to the political sensitivities of the legislature and judges are allowed to take, as Lord Neuberger puts it, 'a more detached view'. Any decision, however subtle, by the Court in regards to laws on abortion in Northern Ireland will inevitably engender dissatisfaction from whichever segment is particularly affected. Think of it then as a furthering of a discussion, albeit at a rather narrow incremental pace, that has remained at a standstill for years.
