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Northern Ireland rules current abortion law a violation of human rights
On 30th November 2015, the High Court in Belfast ruled that a ban on abortion would violate a pregnant woman’s human right to privacy, as defined under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (1950).
Northern Ireland’s existing laws state that abortion is only allowed where the mother’s life is at risk from continuing the pregnancy. The applicant for the declaration was the Northern Ireland Human Rights Commission (NIHRC), who sought a delcaration that the human rights of women who were carrying babies with ‘SMF’ – “serious malformation of the foetus” , ‘FFA’ -
In his introduction to the review, Mr Justice Horner outlines the main basis for disagreement:
“One of the foundations upon which the common law is built is the principle of the sanctity of life…one of the other foundations of the common law is the principle of personal autonomy, the right of self-
Despite this promising start, which seems to promise a balanced presentation of all viewpoints and consideration of evidence, and whilst recommending all parties for the quality of the evidence proffered, there is a caveat; in order to keep the judgment to a “reasonable length”, not all evidence is discussed and presented. All parties are “assured” that their arguments have been taken into account and it is Horner’s job to make sure that “the present law on abortion in Northern Ireland…is Convention compliant.” For Horner it is a purely “legal question” and he assures the reader the NIHRC has “made it clear that it does not seek to establish such a general right [to abortion].” (Part 6 of the introduction). However, this does not appear to be the case later in the document, when Horner’s veil of objectivity seems to slip. A section in ‘Background Facts’ recounts the snail-
Horner then proceeds to couple the slow progress of the case up to this point with a comment made by the First Minister in an interview that, given the political and historical context of Northern Ireland, any attempt to change the legislation was ultimately “doomed.” (Evidence Part 36, iii)The conclusion drawn by Horner from these two pieces of evidence is apparently “unavoidable”, that “the prospect of any consultative paper, never mind legislative action on pregnancies which are the consequence of sexual crime, is…gloomy.”
Four different articles from the Convention are discussed by Horner in his report – 2, 3, 8 and 14. Article 8 – the ‘Right to Respect for Private and Family Life’ is judged to be breached, according to Horner, when it concerns the abortion of babies with FFAs “at any time” and “pregnancies due to sexual crime up to the date when the foetus becomes capable of an existence independent of the mother.” Part Q, 173 He then dismisses Article 14 – the Prohibition of Discrimination – as it is surplus to requirements, once one human right has been contravened.
Understandably, the NIHRC does not present Article 2 – the Right to Life -
There have been several responses from the Christian community to the declaration, all united in the belief that it was a sad day for the rights of unborn children in Northern Ireland. Bernadette Smyth provides a summary of most opinions about this case:
“We welcome that Mr Justice Horner acknowledged that there is no right to abortion in international human rights law. He also made clear that the illegality of abortion neither discriminates against the woman nor subjects her to inhumane and degrading treatment. However, we are deeply saddened that he did not recognise the right to life which is shared by all unborn children in the Universal Declaration of Human Rights, the European Convention on Human Rights, the UN Declaration on the Rights of the Child and the UN Convention on the Rights of the Child…The Right to Life is granted neither by judges nor politicians, but it is their duty to protect it. We cannot and will not accept a ruling that is so morally wrong in denying the fundamental rights of the most vulnerable human beings in society. @