Belfast woman to challenge NI abortion laws in High Court
Decision follows ruling by British supreme court on legality of situation in North
A Belfast woman who travelled to Britain for an abortion is to take a case to the High Court in her home city after campaigners lost a UK supreme court appeal over the legality of Northern Ireland’s abortion laws.
Supported by Amnesty International, Sarah Ewart, who travelled for an abortion after being told her baby would not survive, said she was seeking a formal declaration that the North’s laws on abortion were incompatible with human rights law.
The supreme court on Thursday dismissed on technical grounds a challenge taken by the Northern Ireland Human Rights Commission (NIHRC) against Northern Ireland’s abortion laws but a majority concluded they breached the European Convention on Human Rights (ECHR).
The seven-judge panel found the NIHRC did not have the competence to challenge the law on abstract grounds but suggested a challenge brought by a victim of the law could be successful.
Amnesty Northern Ireland spokeswoman Grainne Teggart said: “Despite the fact that there wasn’t an identified ‘victim’ in this case, the judges felt so strongly that the evidence showed that Northern Ireland’s abortion law breaches women’s rights, that they dispensed with procedure and set out their conclusions anyway.
“If there’s any testament that we need to get rid of this inhumane abortion ban, it’s that.
“We’ll now finish what we started by taking this to the Belfast High Court to demand it makes the final formal declaration.”
In his judgment, Lord Mance - the court’s deputy president - stated that the current 150-year-old law in Northern Ireland was “untenable” and in need of “radical reconsideration” due to the “ongoing suffering” it caused.
While the legal challenge could not be taken on technical grounds, he said: “I would have concluded, without real hesitation at the end of the day, that the current state of Northern Ireland law is incompatible with article 8 of the Convention, insofar as it prohibits abortion in cases of fatal foetal abnormality, rape and incest.”
Unlike other parts of the UK, the 1967 Abortion Act does not extend to Northern Ireland.
Northern Ireland only permits abortion in cases where a woman’s life is at risk or if there is a risk of permanent and serious damage to her mental or physical health. Anyone who unlawfully carries out an abortion could be jailed for life.
The NIHRC challenged the law on the basis that it was incompatible with article 3 (the prohibition of torture and of inhuman or degrading treatment), article 8 (the right of everyone to respect for their private and family life) and article 14 (the prohibition of discrimination) of the ECHR.
The court found that the NIHRC did not have standing to bring the proceedings because they were not instituted by identifying any unlawful act or any potential victim of it, although three justices dissented from that conclusion.
Four of the seven justices considered, however, that the law in Northern Ireland is disproportionate and incompatible with article 8 of the ECHR insofar as it prohibits abortion in cases of fatal foetal abnormality, rape and incest.
“If an individual victim did return to court in relation to the present law, a formal declaration of incompatibility would in all likelihood be made,” the judgment said.
The judgment comes as politicians at Westminster are under pressure to legislate to change Northern Ireland’s abortion law following last month’s referendum in the Republic.
The Northern Ireland Assembly voted in February 2016 against legalising abortion in cases of fatal foetal abnormality and rape or incest.
Prime minister Theresa May’s government has argued that abortion is a devolved issue so only Northern Ireland’s politicians at Stormont should decide if the law should be changed.
Human rights, however, remain the preserve of Westminster and Lord Kerr told the court that, although its finding that Northern Ireland’s law was in breach of international human rights law were not technically binding, politicians should take note.
“The comprehensive discussion of the judgments of the question of compatibility, although not in any sense binding, must nevertheless be worthy of close consideration by those in whose power it lies to decide whether the law should be altered,” he said.
Northern Ireland Secretary Karen Bradley, responding to an urgent question in the House of Commons on Thursday, said: “The government is carefully considering the judgment and its implications.”
Sinn Féin said the ruling underlined the need for reform and the party called for the repeal of Sections 58 & 59 of the Offences Against the Person Act 1861.
In contrast, former DUP health minister Jim Wells MLA, who holds strong anti-abortion views, said: “I am delighted with today’s Supreme Court decision. Had it gone the wrong way Northern Ireland would have faced abortion on demand.”