Abortion rights on trial: A step in the right direction for NI?

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By Mary-Rachel McCabe and Keina Yoshida

Northern Ireland has one of the most draconian abortion laws in Europe.  The legislation provides that it is only lawful to perform an abortion for the purpose of preserving the life of the mother.  A person who performs an abortion is liable to criminal prosecution, with a maximum sentence of life imprisonment. 

But a court ruling next week could change all of that.

On 29th June, the Court of Appeal in Northern Ireland will hand down its decision in an important case regarding abortion law. The appeal comes from the decision In the Matter of the Law on Termination of Pregnancy in Northern Ireland decided by Mr Justice Horner in 2015. In the decision made in the High Court in Belfast, the judge held that abortion legislation in Northern Ireland breached Article 8 of the European Convention on Human Rights (ECHR) – the right to a private life - by failing to provide exceptions to the prohibition on abortion in cases of fatal foetal abnormality or where the pregnancy is the result of sexual crime (rape and/or incest).  

The application was brought by the Northern Irish Human Rights Commission.

Back in 2015, Mr Justice Horner stated:

“There is no right to abortion in Northern Ireland except in certain carefully defined and limited circumstances.  The Commission has made it clear that it does not seek to establish such a general right.  This application is about whether the failure to provide certain limited exceptions to the ban on abortion in Northern Ireland, namely in cases where there is a [serious malformation of the foetus], including a [fatal foetal abnormality], or where the pregnancy is a consequence of sexual crime is in compliance with the rights enjoyed by all citizens of Northern Ireland under the European Convention on Human Rights."

Significantly, Mr Justice Horner found that the current abortion law in NI was contrary to a woman’s right to a private life under Article 8 ECHR.

The High Court decision disappointingly did not find a violation of Article 3 ECHR – the right not to be subjected to torture or to inhuman or degrading treatment or punishment - and did not consider the arguments relating to discrimination that had been raised by the Commission.

The decision is therefore narrow in its scope, but important nonetheless in its recognition that the current legislative regime violates Northern Irish women’s Convention rights.

A decision by the Court of Appeal to uphold the judgment would mark an important step towards respecting and protecting the fundamental rights of sexual and reproductive health for Northern Irish women.  

Northern Irish women have been termed “second class citizens” since abortions are available in England, Wales and Scotland.  This forms part of a separate challenge currently pending in the Supreme Court. A decision by the Court of Appeal to uphold the violation of Article 8 would also bring Northern Ireland in line with the building consensus that the criminalisation of and failure to provide services that only women require, constitutes discrimination based on sex and is impermissible.

The recognition that abortion services should be available in the cases of rape, incest and fatal foetal abnormality, is the very least that can be done to ensure that women’s rights to autonomy and equality are upheld in line with international law.