Today’s important news here was that Mr Justice Horner, sitting in the High Court in Belfast, held that the abortion legislation in Northern Ireland breached Article 8 of the European Convention on Human Rights. There were two specific breaches found:
i. failing to provide an exception to the prohibition on abortion in cases of: a fatal foetal abnormality (at any time during the pregnancy); and
ii. failing to provide such an exception where the pregnancy is the result of sexual crime (up to the date when the foetus is capable of existing independently of the mother).
As Clare Bailey, Deputy Leader of the Green Party in Northern Ireland, has said:
“This is a momentous moment for women in Northern Ireland. I welcome that the High Court has recognised that Northern Ireland’s archaic abortion laws breach human rights. Mr Justice Horner has recognised that women who have suffered sexual crime or in cases of fatal foetal abnormality should be afforded choice over their decisions. No woman takes the decision to have a termination lightly and they should be given every support necessary, not forced into a decision because there are no alternatives.”
It is important to recognise what this decision does not say, as well as what it does, and so I do recommend that everyone, whatever their opinions on the issue, reads the official Summary of Judgement rather than relying on media reporting of its contents. I’m planning to read the full judgement too, but that won’t be today. Meanwhile here are a few key parts of the summary (titles and text in square brackets my own).
What the case was about:
“Mr Justice Horner noted at the outset of his judgment that this was not a case about the right to abortion:
“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 an SMF [serious malformation of the foetus], including an FFA [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.”
When a legal human life begins:
Mr Justice Horner commented that the European Court of Human Rights has shied away from determining when human life begins and has concluded that it is a matter for each Member State to determine within that State’s margin of appreciation. The Supreme Court of the Republic of Ireland has interpreted the right to life as commencing at the moment of conception whereas in England and Wales the common law position is that a foetus is not a legal person until it is born and has a separate existence from its mother. Mr Justice Horner held that there are no grounds for concluding that the common law in Northern Ireland is any different to that in England and Wales.
What the European Convention on Human Rights does:
“The Convention does not require anyone to give up his or her deeply held beliefs on certain moral or religious matters. It just means that in respect of certain rights protected by the Convention one section of the community, whether in the majority or not, is no longer able to deny to others whether by the imposition of criminal sanctions or otherwise, the ability to enjoy those protected Convention rights.”
Why serious malformations of the foetus were not included in the situations which, according to this judgement, breached Convention rights:
“He noted that there does not appear to be any international obligation to provide abortions in respect of SMFs nor any drive internationally to ensure that SMFs should be made an exception to the present abortion regime in Northern Ireland:
“There is also surely an illogicality in calling for no discrimination against those children who are born suffering from disabilities such as Down’s Syndrome or spina bifida on the basis that they should be entitled to enjoy a full life but then permitting selective abortion so as to prevent those children with such disabilities being born in the first place. This smacks of eugenics. It is always difficult to draw the line and it comes as no surprise that the phrase “serious malformation of the foetus” remains undefined. It can mean different things to different people.”
Why the fact that women can travel to other parts of the UK for abortions does not make the current situation acceptable:
“If it is morally wrong to abort a foetus in Northern Ireland, it is just as wrong morally to abort the same foetus in England. It does not protect morals to export the problem to another jurisdiction and then turn a blind eye;
- If the aim is to prevent abortion, then it is surely no answer to say that abortion is freely available elsewhere and that necessary services can be easily accessed in an adjacent jurisdiction. There is no evidence before this Court, and the Court has in no way attempted to restrict the evidence adduced by any party, that the law in Northern Ireland has resulted in any reduction in the number of abortions obtained by Northern Irish women. Undoubtedly, it will have placed these women who had to have their abortions in England under greater stress, both financial and emotional, by forcing them to have the termination carried out away from home;
- There can be no doubt that the law has made it much more difficult for those with limited means to travel to England. They are the ones who are more likely to be greatly affected in their ability to terminate their pregnancy if they cannot obtain charitable assistance. The protection of morals should not contemplate a restriction that bites on the impoverished but not the wealthy. That smacks of one law for the rich and one law for the poor.”
Why the current legal situation does not prevent abortions in these circumstances:
He said that while there was evidence that forcing young women to travel to Great Britain can have the consequence of imposing an intolerable financial and mental burden on those least able to bear it, there was “not one iota of evidence” that the imposition of criminal sanctions on these women in these exceptional cases has resulted in the saving of any pre-natal life.
The particular issues relating to a woman or girl who becomes pregnant as a result of rape or incest:
“She has to face all the dangers and problems, emotional or otherwise, of carrying a foetus for which she bears no moral responsibility and is merely a receptacle to carry the child of a rapist and/or a person who has committed incest, or both. In doing so, the law is enforcing the prohibition of abortion against an innocent victim of a crime in a way which completely ignores the personal circumstances of the victim. Weighed in the balance is the foetus, incapable of an independent existence. The law makes no attempt to balance the rights of the women that are involved. Instead, by imposing a blanket ban on abortion, reinforced with criminal sanctions, it prevents any consideration of the interests of the women whose personal autonomy has been so vilely and heinously invaded. A law so framed can never be said to be proportionate.”
Mr Justice Horner said that sexual crime is the grossest intrusion on a woman’s autonomy in the vilest of circumstances. Any resulting pregnancy is not a voluntary act but one which was forced upon the woman. He noted that in Northern Ireland a woman who becomes pregnant as a result of a sexual crime is obliged to carry a child to full term or risk criminal prosecution unless she obtains an abortion for the purpose of preserving the mother’s life or if continuation would make her “a physical or mental wreck The judge noted that the foetus does not have any Article 2 rights and there is no evidence that any life has been saved by the impugned provisions or the abortion regime presently operating in Northern Ireland insofar as they affect women pregnant as a result of sexual crime. He added that there was also no evidence that the people of Northern Ireland require a woman impregnated as the result of a sexual crime to carry the foetus to full term because of their profound and moral views.
The particular issues relating to fatal foetal abnormality:
“[T]he judge said that there can be no doubt that the mother’s inability to access an abortion in the circumstances where the doctor can be certain that the foetus will be unable to live independently outside the womb constitutes a gross interference with her personal autonomy. “In the case of an FFA there is no life to protect. When the foetus leaves the womb, it cannot survive independently. It is doomed. There is nothing to weigh in the balance. There is no human life to protect. Furthermore, no evidence has been put before the Court that a substantial section of Northern Ireland’s community, never mind a majority, requires a mother to carry such a foetus to full term. Therefore even on a light touch review, it can be said to a considerable degree of confidence that it is not proportionate to refuse to provide an exception to the criminal sanctions imposed by the impugned provisions.”
This seems to me to be a moderate and sensible judgement, upon which, with goodwill, we could find much common ground between those who might traditionally think of themselves as ‘pro-choice’ or ‘pro-life’. Mr Justice Horner has emphasised that this case is not about a right to abortion, only to exceptions in the case of these two specific and traumatic sets of circumstances. There is no suggestion that women in these cases ought to seek abortions, only that the decision should be their own. Very importantly, he points out that the current situation does not prevent these abortions, only outsourcing the procedure across the sea, at great emotional, personal and financial expense to the women concerned. If we genuinely want to reduce the real number of abortions carried out upon women in Northern Ireland, we must go about it in quite a different way, as I have written before on this blog.
Meanwhile, as Clare says;
“I can only hope that Northern Ireland’s politicians are listening and take steps to amend legislation as a matter of urgency.”
Amen to that, for all our sakes.