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JANUARY 2016

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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’ - “fatal foetal abnormality”, or who had become pregnant through sexual crime such as rape, incest or abuse were infringed by the existing limits placed on accessibility to abortion in Northern Ireland. The human rights being examined were namely Articles 3, 8 and 14, from the Convention for the Protection of Human Rights, which the NIHRC argued were breached by various components of the Offences Against the Person Act (1861) and Section 25 of the Criminal Justice Act (NI) 1945. @ (From the Executive Summary of Justice Horner’s judicial review.)


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-determination. Those in favour of abortion in the exceptional circumstances put forward before the Court rely on personal autonomy. Those against abortion call in aid the sanctity of life. One of the tasks of this Court is to place these principles in their proper context.”


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-like pace of the review through various departments of Northern Ireland’s judicial system up to this declaration in November 2015. What originally started as the NIHRC presenting the case of incompatibility to the Minister of Justice and asking for a consultation paper as part of the process, eventually turned into the NIHRC presenting the case on its own, due to the perceived inaction of the Minister of Justice.  In part D the NIHRC even remind the Minister in a rather threatening tone, that it “was his Department that was responsible for introducing legislative change in this area”. Would this be necessary from a body which was merely pertaining to present a case “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, including an FFA, or where the pregnancy is a consequence of sexual crime is in compliance with the rights enjoyed by all the citizens of Northern Ireland under the European Convention on Human Rights (“the Convention”)”? Part 6 of the Introduction. It is implied, therefore, that the underlying aim of the NIHRC is to achieve a certain amount of legislative change in this area.

 

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 - as part of its argument, but it does receive attention from Horner due to the cases put forward by the respondents. Sadly, he summarises that a foetus does not have a right to life, because it is not capable of existing independently from its mother. Liam Gibson, the Northern Ireland development for SPUC (Society for Protection of Unborn Children) calls this judgement “dangerously flawed”, citing that Horner has “confused the separate legal issues of viability and the capacity to be born alive.” @ Horner’s decision sends chilling echoes throughout his deliberations concerning the remaining Articles. For example, when discussing Article 3 – the Prohibition of Torture – there is an understandable discussion of the negative physical and psychological side effects of having to travel to another country for an abortion at a time when a pregnant woman is at her most vulnerable. The need for provision of help by other means such as counselling and presentation of other options other than abortion is not discussed. Surely another valid argument to consider is the psychological trauma experienced post abortion by the mother, or the torture experienced by the foetus during the abortion procedure, which are not mentioned either. The latter is not surprising if, by law, a foetus has no ‘life’ or sentient nature - it therefore cannot suffer such a trauma.

   

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. @