Northern Ireland’s Abortion Laws in the Supreme Court This Week
By: Barbara Davidson & Polly Barklem
This week a significant case is being heard in the Supreme Court in London, the highest court in the UK. The case concerns abortion laws in Northern Ireland.
Here, we explain what the case is about and why it is important for the women of Northern Ireland.
What is the Supreme Court hearing about?
In England and Wales, the Abortion Act 1967 allows women to obtain abortions legally. The Abortion Act 1967 does not extend to Northern Ireland: abortion is only legal there if a woman’s life is at risk, or if there is a permanent or long-term risk to her mental or physical health. Abortion is otherwise illegal under the criminal law. The punishment is life imprisonment for anyone who unlawfully procures or performs a termination.
Importantly, there are no exceptions to the abortion ban where the pregnancy involves: (i) serious foetal malformation, including a fatal foetal abnormality; (ii) where the pregnancy is a consequence of rape; or (iii) where the pregnancy is a consequence of incest.
The Supreme Court hearing is about whether or not the criminalisation of abortion in these three specific circumstances is compatible with human rights law, in particular with the following articles of the European Convention of Human Rights (ECHR):-
Article 3 (the prohibition on torture, inhuman or degrading treatment or punishment);
Article 8 (the right to respect for one's private and family life); and
Article 14 (the right to freedom from discrimination)
When and where is the case being heard?
The case is being heard in the Supreme Court in London on 24th, 25th and 26th October. The case is called In the Matter Of The Law On Termination Of Pregnancy In Northern Ireland.
The address is The Supreme Court, Parliament Square, Little George St, Westminster, London, SW1P 3BD. The case will be heard in Court 1.
The judges hearing the case are: Lady Hale, Lord Mance, Lord Kerr, Lord Wilson, Lord Reed, Lady Black, Lord Lloyd-Jones.
Who are the parties to the case?
The case is being brought by the Northern Ireland Human Rights Commission (NIHRC). The other parties to the case are the Department of Justice and the Attorney General of Northern Ireland.
In addition, a number of interested organisations have been granted permission to ‘intervene’ in the case, which means that they have been allowed to let the Supreme Court know what they think about the issues. Some of the interveners are providing written submissions, and some are also making oral submissions in court.
The interveners in this case include: Humanists UK, Christian Action and Research in Education (CARE), Family Planning Association, British Pregnancy Advisory Services, Abortion Support Network, Royal College of Midwives, United Nations Human Rights Council, Bishops of the Roman Catholic Diocese in Northern Ireland and Amnesty International.
How did this case get to the Supreme Court?
In November 2015 the High Court in Belfast decided that failure to provide an exception for fatal foetal abnormalities at any time during pregnancy and in cases where the pregnancy is a consequence of rape or incest up to 24 weeks gestation breaches Article 8 ECHR, but not Articles 3 or 14 ECHR.
In December 2015 the High Court in Belfast granted a declaration of incompatibility with Article 8 ECHR under the Human Rights Act 1998. This is a declaration that the particular laws in Northern Ireland that govern abortion are not compatible with that article of the ECHR (see more on what this means in practical terms below).
In June 2017, the Court of Appeal in Belfast overturned the High Court’s ruling, finding that there was no incompatibility with any human rights law on the issues that it was asked to consider. The NIHRC was given permission to appeal this decision to the UK Supreme Court.
Why is this case important?
The law governing abortion in Northern Ireland is one of the most restrictive in the European Union and the Council of Europe. The maximum criminal penalty imposed - life imprisonment for both the woman undergoing the abortion and the individual who assists her - is the harshest in Europe and among the harshest in the world.
Women in Northern Ireland need and want abortions every day, as they do elsewhere in the world. Approximately two women per day travel from Northern Ireland to England for a termination, at great emotional and (until June 2017) financial cost . The cost, economic, emotional and otherwise, of being forced to travel for an abortion can be immense. An unknown number of women risk (or face) prosecution for taking matters into their own hands by ordering illegal abortion pills online and self-aborting at home. Some women take even more desperate and unsafe measures to end an unwanted pregnancy.
The threat of criminal prosecution for abortion-related offences is not theoretical. Women and girls in Northern Ireland have been arrested for buying abortion pills. Between 2010 and 2017, there have been 9 prosecutions under the OAPA or for alternative offences.
In 2016, a 21-year old woman was given a 3-month prison sentence, suspended for 12 months, after pleading guilty to purchasing abortion pills online in order to induce an abortion.
Could the Supreme Court find that Northern Ireland laws breach human rights?
If the Supreme Court disagrees with the Court of Appeal that the laws in Northern Ireland are not incompatible with the ECHR, it could make a declaration of incompatibility with one or more of the three articles of the ECHR that it is being asked to consider (Article 3, 8 and 14 ECHR).
What is the effect of a declaration of incompatibility?
A declaration of incompatibility has no direct legal effect. It would be up to the UK parliament to legislate to change the law to ensure it is compatible with the ECHR. In other words, it would become a political matter.
Is abortion not a matter that is devolved to the Northern Ireland Assembly?
This case concerns abortion in the light of human rights law standards. Human rights in Northern Ireland are guaranteed under certain international treaties and conventions, including the ECHR. Because Northern Ireland is part of the UK, it is the UK that is the state body under those treaties.
Rights under the ECHR are guaranteed to the citizens of Northern Ireland under the Good Friday Agreement.
Is Northern Ireland law not already a breach of human rights?
The law in Northern Ireland has been repeatedly criticised by international human rights bodies. For example, the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) Committee has repeatedly expressed concern that abortion continues to be illegal in Northern Ireland with limited exceptions and that this is having harmful consequences for women’s health. It has called on the UK to conduct a public consultation in Northern Ireland on the abortion law.
The United Nations Committee on the Rights of the Child issued a report on the United Kingdom on 9 June 2016. It called on the UK Government to: decriminalise abortion in Northern Ireland in all circumstances and to review legislation with a view to ensuring girls’ access to safe abortion and post-abortion care services.
You can watch the hearing live by clicking on this link: https://www.supremecourt.uk/live/court-01.html
If you would like to know more about the case or the law on abortion in Northern Ireland or Ireland, please contact Barbara Davidson or Polly Barklem.