Trial and Error in Northern Irish Abortion Law
By Dr. Ruth Fletcher, Prof Marie Fox, and Dr. Sheelagh McGuinness
Last week was a momentous week in Northern Irish (NI) politics with important implications for abortion law reform. On June 29th the latest deadline for negotiations to restore the NI Assembly, which has now been in abeyance for six months passed, with no agreement being reached, raising the prospect of a return to direct rule from Westminster. As a devolved matter, responsibility for legislating on abortion is entrusted to the Assembly, which has singularly failed to address the issue. On the same day, an amendment to the Queen’s speech by Stella Creasy MP which would have committed the Government to funding abortion services in England for Northern Irish women was selected to be debated and voted on by the Speaker. In order to avoid this vote, and its potential to significantly impact the newly agreed ‘supply and confidence’ arrangement with the DUP, Chancellor Phillip Hammond announced that Westminster was prepared to fund procedures for these women. This was followed by similar announcements from his counterparts in Scotland and Wales. However, and notwithstanding the importance of this development, women forced to travel from Northern Ireland to Great Britain still face other financial and emotional costs as well as other obstacles to accessing abortion care.
Given this, the release of the long awaited ruling of the NI Court of Appeal (NICA) in The Attorney General for Northern Ireland & Anor v The Northern Ireland Human Rights Commission on the same day was highly significant. In this case the NICA unanimously allowed an appeal by the Attorney General for NI (AG), supported by the Department of Justice, against Mr Justice Horner’s decision in the High Court in 2015 that NI abortion law was not human rights compatible (see In the Matter of an Application by the Northern Ireland Human Rights Commission for Judicial Review). Horner J had held that the NI law on abortion contained in ss. 58 and 59 of the Offences Against the Person Act 1861 and the Criminal Justice Act (NI) 1945, as interpreted by Bourne, breached women’s Article 8 right to a private life by prohibiting terminations for women who are pregnant as a result of rape and/or incest or in pregnancies where there had been a diagnosis of fatal foetal abnormality (FFA). The Northern Ireland Human Rights Commission (NIHRC) cross-appealed on Horner J’s holding that the Article 3 and Article 14 rights of women in these circumstances were not engaged.
This outcome of the case is disappointing. While the decision recognises that women’s rights at common law and under the European Convention of Human Rights are violated by the failure to make abortion accessible in certain circumstances, the NICA indicated that it was for the Assembly as the relevant legislature to address the issues. Is it defensible for judges to decline to decide questions of lawfulness and defer to partner legal institutions in these circumstances? As will become clear in what follows, we think not; not least because judges are expected to decide and to provide remedies in a timely fashion. Although in our view the ruling is a case of ‘justice delayed, justice denied’, some aspects of the reasoning are helpful for the struggle for abortion rights and reproductive justice in Northern Ireland and elsewhere. Moreover, there are indications that indefinite delay will not be acceptable and that the courts will be willing to revisit the issue if no timely provision is made by the Assembly (per Morgan LCJ at para 85).
The Question of Standing
One positive procedural aspect of the decision, which has been overlooked in media commentary, is that the Lord Justices of Appeal unanimously held that the NIHRC had legal standing to bring the case. The AG had contended that the Commission lacked the power to bring the case on two grounds - first that that the Minster of Justice (the Minister) lacked the power to amend the abortion law in the way argued for by the NIHRC and hence there was no unlawful act to be remedied; and secondly that the NIHRC needed to identify an individual victim in respect of each asserted human rights breach. However, noting the ‘expansive’ statutory powers accorded to the Commission under the Northern Ireland Act 1998, and adopting a purposive approach which indicated that the Government’s intention was to ‘set out broad parameters for the functions of the Commission’, Morgan LCJ ruled that the NIHRC had standing to pursue the case. This is significant in thwarting the attempt by an avowedly ‘anti-choice’ AG to stymie the NIHRC’s ability to bring a case on behalf of ‘victims’, rather than requiring individual women to undertake the onerous and emotionally charged burden of mounting a human rights challenge on their own behalf.
Written submissions from interveners in the case are notable for the powerful way in which they conveyed the lived experience of women denied terminations in NI. Interveners included Sarah Ewart, who in October 2013 shared publicly details of her traumatic experience of being forced to travel to England for a termination of her much wanted pregnancy following a diagnosis of anencephaly. Another first person perspective was submitted by AT in an affidavit on behalf of Alliance for Choice. At her 20-week scan AT was informed that her foetus was suffering from a serious anomaly that was most likely fatal. She described the ‘nightmare’ of having to continue with the pregnancy until eventually her waters broke at just under 35 weeks. In addition to Ewart and AT, the Abortion Support Network (ASN) and Marie Stopes International in NI (MSNI) provided details of the range of women they have supported. Common themes in these accounts were the emotional and psychological impact of being denied terminations, the financial implications, and a lack of certainty in ascertaining who is actually entitled to a lawful termination in NI and who has to travel.
Although they agreed on the outcome of the case, the reasoning of Morgan LCJ, Gillen LJ, and Weatherup LJ is quite divergent. Here we focus on some key aspects of their judgments.
The Bourne exception
The Court refused to make a declaration of lawfulness with regard to termination of pregnancy in circumstances of rape/incest or a FFA diagnosis. However, the judges all accepted that abortion is lawful in those situations where continuing the pregnancy involves a risk of serious or long-term damage to the woman’s health. In this regard two points are worth noting. The first is made by Morgan LCJ when he explains the scope and significance of the Bourne exception, but is not shared by the other two. The second and more important point is common to all three judgments, although it is taken up to varying extents and for slightly different reasons.
In the first judgment the LCJ outlined the applicable domestic law, principally contained in sections 58 and 59 of the Offences Against the Person Act 1861 which makes procuring a miscarriage a criminal offence punishable by up to life imprisonment. This prohibition was interpreted in the English Crown Court case of R v. Bourne to be subject to a limited exception for the purposes of preserving the mother’s life, including in circumstances where the woman would otherwise be left a ‘physical or mental wreck’. Morgan LCJ summarised this decision as balancing the public interest in protecting the foetus against the rights of the pregnant woman. He then sought to reinterpret the Bourne test, noting that in the 80 years since the decision “the scope of the right to personal autonomy and development of women in this jurisdiction” has changed radically (para 78). Accordingly, he suggested that the Court should seek to interpret the applicable test in a manner not “defined by the values of the 1930s”. He continued this line of reasoning as follows:
The present law prioritises the need to protect to a reasonable extent the life that women in these emotionally devastating situations can enjoy. In my opinion that requires the court to determine what is reasonably tolerable in today's society. That is not to be defined by the values of the 1930s. I conclude that circumstances such as those described in those affidavits fall within the scope of the Bourne exception interpreted in accordance with that test. I consider that in each case the effects on these women were such that the option of abortion in this jurisdiction after appropriate advice should have been open. That conclusion is not dependent upon the state of health of the foetus. (para 79)
Morgan LCJ’s approach provides a welcome example of working the common law in light of contemporary conditions; however, it is not shared by the other judges. Gillen LJ noted, “it is institutionally inappropriate and a reach too far for this court to change the legislation and its interpretation in R. v Bourne” (para 92). Weatherup LJ was similarly disinclined to interfere with the established meaning of the ruling (para 125). Independent of his approach to interpretation it is worth noting how Morgan LCJ regards the ‘risk to life’ as encompassing quality of life interests, not as alternative to them. Weatherup LJ joins him in this position. In this way, the judgment shows how legal rules which provide for life-saving abortion do not have to regard life and health in exclusive, binary terms, and that significant threats to health are capable of establishing a risk-to-life justifying abortion. For further discussion of ways to engage with ‘right to life’ exceptionalism see McNeilly; Fletcher.
More importantly, however, Gillen and Weatherup LJJ agree with Morgan LCJ that the women considered in the evidence presented to the Court should in their view have qualified for an abortion under the Bourne exception. In other words the judgments suggest that terminations of pregnancies in circumstances of rape/incest and diagnoses of FFA are probably lawful. Thus, Gillen LJ notes: “From my own part I have difficulty seeing how at least some of them would not fall within the current Bourne provision” (para 117). Similarly, Weatherup states:
Were it to be the case that the diagnosis of fatal foetal abnormality had significant impact on the life or physical or mental health of the mother, termination would be permitted under the existing law. (para 162)… Should [pregnancy resulting from rape or incest] result in a sufficiently serious risk to the life or physical or mental health of the mother, then termination is permitted (para 168)… The third category in issue concerns serious malformation of the foetus. Again it remains the case that if the mother is able to demonstrate the required risk to life or health a termination may occur. (para 173)
On the one hand, this is a welcome recognition by the highest court in Northern Ireland that these and other similarly situated pregnant people are lawfully entitled to abortion care in Northern Ireland. On the other, if these women cannot rely on the judges of that court to declare what their lawful interests are, then on whom can they rely? In our view, in failing to perform the decisive role expected of them, the NICA has shirked its judicial responsibilities. Further, it is unclear why the judges do not take this reasoning to its obvious conclusion: Why is it not a breach of the procedural aspect of the women’s Article 8 rights? We will now move on to explain this point.
Narrating legal certainty
Where Morgan LCJ saw ambiguity and adaptation in the relevant legal rules, Gillen LJ saw certainty. For him, it would be inappropriate to make either a declaration of lawfulness, or one of incompatibility, because “the current law provides a measure of certainty and legislative accountability” (para 115).
Legal certainty was also important in his reasoning on human rights. In his summary of Strasbourg jurisprudence he noted that the decision in A, B, and C v Ireland “makes clear that there is no right to an abortion within Article 8 of the Convention” (para 96). However, this overlooks the concurrent trend in abortion litigation in the European Court of Human Rights (ECtHR), (e.g. Tysiac v Poland, A, B, and C v Ireland) that where abortion is legal it must be accessible. This trend was summarised by Morgan LCJ:
The effect of the Polish decisions is that there must be effective and accessible mechanisms capable of determining within appropriate timescales whether the conditions for obtaining a lawful abortion have been met. This includes providing for procedural mechanisms where there is disagreement between the pregnant woman and her doctors or between the doctors themselves. (para 62)
In cases where lawful abortion is not accessible there is potential for breach of the procedural aspects of Article 8. The Polish decisions that Morgan, LCJ is referring to here are R.R v Poland and P&S v Poland. It is beyond the scope of our analysis to include detailed discussion of these cases; it suffices to say that two points are established: (i) when abortion is legally available there must be a coherent legal and medical infrastructure in place which ensures that women are capable of accessing it; (ii) that obstructing access to abortion care can amount of a breach of Article 3. We will return to this latter point in the next section but for now want to consider the failure of the Court to acknowledge the very real procedural barriers that women who may be lawfully entitled to abortion care may face.
As noted above, Gillen LJ concluded his judgment by stating that in his view many of the women they had heard from should have qualified for a termination under the Bourne exception:
I appreciate that these are comfortless sentences for those various women living in the circumstances depicted in the affidavits sworn with admirable intent in this matter. For my own part I have difficulty seeing how at least some of them would not fall within the current Bourne provision but it is not for this court rather than the legislature to hasten a further shift in moral standards that may have been unfolding for some time. (para 117)
It seems contradictory for him to assert that “[i]f observed with integrity and without fretful backward glances the Bourne exception provides a law which is adequately accessible, sufficiently precise and honours the wording of the relevant statutes” (para 115), while at the same time acknowledging that the situation in NI is such that those who may or should be entitled to abortions in NI are not receiving them. Several of the cases, discussed in the testimony of the interveners mentioned above, detail the uncertainty and contradictory advice given to women about whether they were entitled to abortion care in NI.
The lack of certainty in NI law on abortion has been one of the few factors on which legal commentators have long agreed. Thus, even before the NIHRC came into being, in a 1993 paper commissioned by its predecessor (the Standing Advisory Committee on Human Rights) Simon Lee had argued compellingly that NI abortion law existed in a twilight zone:
The law on abortion Northern Ireland is so uncertain that it violates the standards of international human rights law. It could not withstand a challenge before the European Court of Human Rights... Clarity is the key word. Some might argue that the law should be more permissive of abortions while some might argue that it should be more restrictive but all should agree that the present law is unacceptably uncertain.
This view has since informed legal challenges by the Northern Irish Family Planning Association (NiFPA). Gillen LJ’s conclusion is particularly galling given Morgan LCJ‘s discussion of the ‘lamentable delay’ in the Department of Health, Social Services and Public Safety issuing guidance following this litigation (para 3). Although a declaration was made in 2004 that such guidance was necessary it was not produced until 2009 and subsequent litigation meant a final version was not published until 2013.
Judicial guidance on human rights compliance
It is accepted by all that access to abortion engages Article 8 and, as such, restrictions on abortion must be justified. All of the judges also accept that restrictions on abortion serve the legitimate aim of foetal protection, though they diverge in their assessment of the extent to which the current legal framework is human rights compliant. Only Weatherup LJ states explicitly that he thinks the current law breaches human rights standards. He concludes:
In relation to the Article 8 claim for the right to respect for private life I have expressed the provisional view that, on the evidence before the Court, the exclusion of fatal foetal abnormality and pregnancy by reason of incest or rape from the permitted grounds for termination of pregnancy have not been justified. This is of course a controversial issue and is primarily a matter for legislation and remains under consideration in the Assembly. (para 178)
Morgan LCJ varies from Weatherup LJ in finding NI law compatible with Article 8 given his overall acceptance of the broad margin of appreciation decision in A, B, and C v Ireland. He does however, provide a welcome critique of the consensus analysis of the majority judgment in that case. He agrees with the minority that the majority asked the wrong question about consensus. The minority view was that consensus should be measured according to the extent to which member states have balanced women’s rights against the public interest in foetal life and found the woman’s right to be stronger. It is not to be judged by reference to questions regarding the beginning of life and the legal status of the unborn alone. On this view, there is consensus across Europe that abortion is permissible in circumstances of risk to a woman’s health and well-being, and this consensus should narrow the margin of appreciation (even if it does not currently as a matter of law).
Morgan LCJ also makes the important point that Article 3 could apply to pregnancies in Northern Ireland. For him, the significance of the Polish cases, highlighted above, lay in holding that a lack of practicable and effective mechanisms to secure lawful rights to abortion may amount to degrading treatment. However, he further notes that in cases involving reproductive rights a very high threshold is required for a breach of Article 3 and a successful claim of breach will likely only succeed “in a case where the life of the mother [sic] is at risk” (para 61). Morgan LCJ rightly questions the disparity in the threshold for violations of Article 3 in the sphere of reproductive rights as against other situations. However, he fails to fully interrogate the question of whether the lack of practicable remedies for women who meet the test for lawful abortion in NI would violate Article 3. Specifically here he needed to consider those women who were pregnant due to rape or where a fatal anomaly was present, assuming as he and the other LJJ do that these cases give rise to a risk to life in the Bourne sense.
The outcome of the case and much of the reasoning is regrettable. So too is the choice of terminology used. Gillen and Weatherup LJJ both couch their judgments in the rhetoric of the ‘unborn child’ and ‘the mother’. All the judgments concur that the court is dealing with a ‘sensitive moral issue’ and give undue prominence to Article 2 rights in foetocentric terms. It is further perplexing that Weatherup LJ considered that a declaration of incompatibility would require the court to engage in a wholesale rewriting of abortion law (para 109-13).
Placing the litigation in a broader context, while it is, as we have noted, vitally important that the standing of the NIHRC to take such actions is affirmed, it is unfortunate given other demands on its resources that a considerable proportion of the NIHRC budget needs to be earmarked for such actions. In terms of the substantive reasoning, the complexity of the judgments make it scarcely tenable to claim that NI abortion law satisfies the tenet of legal certainty.
It is welcome that (a) Morgan LCJ and Gillen LJ express the view that women in NI who are pregnant as a result of rape or having had a diagnosis of foetal anomaly should be entitled to treatment in NI; and (b) that Weatherup LJ believes that current restrictions in NI are in breach of Article 8. Yet it is frustrating that all judges allow themselves to be constrained by deference to the NI Assembly, particularly given the inability of the two main parties to reach an agreement that would restore the Assembly and the Assembly’s lamentable track record of opposition to abortion law reform. It perpetuates conditions under which women in NI suffer as a result of 'mandated [institutional] silence’.
With the announcement on July 4th that the NIHRC has been granted permission by the NICA to appeal to the UK Supreme Court it is to be hoped that the women in Northern Ireland will be better served by the judges of the UK’s highest court.
Dr. Ruth Fletcher, School of Law, Queen Mary University of London (email@example.com)
Prof Marie Fox, Liverpool Law School (Marie.Fox@liverpool.ac.uk)
Dr. Sheelagh McGuinness, University of Bristol Law School (firstname.lastname@example.org)