The Belfast High Court judgment on access to abortion in the North has rightly been described as historic. The outcome of the case taken by the Northern Ireland Human Rights Commission is to be welcomed, particularly given the neglect of women's rights and gender equality in the North over several decades.
Both the Minister for Justice, David Ford, and the Attorney General, John Larkin, have indicated that they are appealing the High Court’s judgment.
The judgment is a striking one, not only in the challenge it poses for the European Court of Human Rights but, more widely, in the attention it gives to the specific issue of women’s reproductive autonomy in seeking to balance contested rights claims on abortion.
Specifically, on the right to travel to England to secure access to an abortion, Mr Justice Mark Horner noted that it does not protect morals to export a problem to another jurisdiction and then turn a blind eye.
It was precisely this possibility to travel to another jurisdiction that contributed in no small part to the European Court of Human Rights concluding, in A, B and C v Ireland, that the interference with the rights of two of the applicants, A and B, did not ultimately lead to a violation of Article 8 of the European Convention on Human Rights, protecting the right to private life.
This finding of the court has attracted widespread criticism. It is difficult to imagine that a court would, in other circumstances, find that the freedom to travel to a neighbouring country was relevant to determining the proportionality of a state’s interference with a protected human right (in this case a woman’s right to private life).
The discriminatory impact of Ireland’s abortion laws on women who are unable to travel has been repeatedly criticised by UN bodies, marking a sharp contrast with the position taken by the European Court of Human Rights to date.
One law for the rich
As Mr Justice Horner said, the restriction on access to abortion “bites on the impoverished but not the wealthy”, meaning there is one law for the rich and another for the poor. As he also noted, the European consensus points to the need to extend the right to abortion on both sides of the Border.
Northern Ireland’s abortion regime is more restrictive than Poland’s but less restrictive than in the Republic. The only other European states with comparably restrictive regimes are Andorra, San Marino and Malta.
What impact the Northern Ireland High Court's judgment will have on this jurisdiction has been the subject of much debate. Whether it will prompt legal or political change is uncertain, but there can be no doubt that it adds momentum to the recognition of women's reproductive autonomy as central to the lexicon of human rights – women's rights as human rights, to repeat the mantra of the Beijing World Conference on Women 21 years on.
The judgment of a court in the North is, of course, not binding in this jurisdiction. Equally, the European Court of Human Rights is not bound to follow its findings on the scope of Article 8 of the convention’s protection of private life. But it cannot be denied that the reasoning of the High Court, particularly on a woman’s right to autonomy and the repeated denial of that right, is significant.
Mr Justice Horner noted Northern Irish law places a disproportionate burden on victims of sexual crimes. A woman who is pregnant following rape, the judge said, is “merely a receptacle to carry the child of a rapist”, her personal autonomy “vilely and heinously invaded”. The blanket ban on abortion in such circumstances, even when the victim of rape is a child herself, can, he said, “never be said to be proportionate”. Such clarity in a court judgment on this island, on the contested subject of women’s reproductive autonomy, is rare.
Central to the conclusions of the European Court of Human Rights in the A, B and C case was the finding the current abortion regime reflected the profound moral views of the Irish people. The court found insufficient evidence the views of the majority had changed significantly since the 1983 referendum supporting the Eighth Amendment to the Constitution. Recent opinion polls, however, challenge that conclusion.
The Horner judgment, and the willingness of the
Northern Irish Human Rights Commission
to take this case, point also to significantly changing views in the North. In 2008, the commission reported the issue of terminations was one of the most contested in its consultations on a bill of rights. It went on to note that there was “no clear widely accepted international standard in respect of the underlying issues”. The commission’s practice, and indeed international human rights law, have evolved significantly since 2008.
The commission has indicated it will challenge the appeals brought by both the Department of Justice and the Attorney General and will re-introduce all of the original grounds brought before the High Court, namely, access to a termination of pregnancy in circumstances of serious malformation of foetus (including fatal foetal abnormality), rape or incest. Commenting on the appeals, Chief Commissioner Les Allamby, noted that the commission was seeking to secure legal reform, “so that the human rights of women and girls are protected when facing these difficult decisions.”
Other developments on both sides of the Border have received less attention in this debate. The slow pace of reform and wavering political commitment have prompted a number of brave women and organisations to seek the support of UN human rights bodies in the struggle for change. A request to the UN Committee on the Elimination of All Forms of Discrimination Against Women to conduct an inquiry into NI abortion law was submitted by the Family Planning Association, the Northern Ireland Women's European Platform, and Alliance for Choice. This request is still pending.
In this jurisdiction, two complaints are pending before the UN Human Rights Committee against Ireland, specifically on the prohibition of abortion in cases of fatal foetal abnormality.
Given the committee’s repeated criticisms of abortion law in Ireland, there is a strong possibility that Ireland will be found to be in violation of the International Covenant on Civil and Political Rights. If this happens, as a matter of international law, the State has an obligation to bring its law into conformity with the covenant.
But the government of the day may decide not to, and international law depends very much on the political will of states to comply with their legal obligations, such is the continuing force of state sovereignty. However, in the face of repeated international condemnation, the State cannot continue to deny the inhumanity of our laws and the degradation of women's bodies that underpins such laws. Siobhán Mullally is professor of law at University College Cork and director of the Centre for Criminal Justice and Human Rights. She is joint editor of The Irish Yearbook of International Law (Hart Publishing, Oxford)