Northern Ireland abortion ruling puts pressure back on politicians
Argument for repeal of Eighth Amendment with provision of limited abortion on human rights grounds strengthened by decision
When the Government in 2013 whipped a number of reluctant TDs through the lobbies to support abortion – in the form of the Protection of Life during Pregnancy Act – it was able to argue that it did so as a legal imperative arising from the State’s adherence to the European Court of Human Rights (ECHR). The Strasbourg court had found that the inability of a number of women to secure abortions in the Republic violated their Constitutional rights and required the State to provide legislative vindication for those rights.
On Monday the court’s jurisprudence on abortion again asserted itself, this time at a remove, when a judge in the Northern Ireland High Court held that abortion legislation there breached the European Convention on Human Rights by failing to provide an exception to the prohibition of abortion in cases of fatal foetal abnormality or where the pregnancy is the result of sexual crime. In his judgment (Application for Judicial Review by the NI Human Rights Commission) Mr Justice Mark Horner observed that the politicians were showing no inclination to put matters right legislatively – his ruling will force them, as the ECHR did in Dublin, to remedy the situation.
Once again, when they do so and, it is to be hoped, with greater urgency than their Southern counterparts, anti-abortion legislators in the North will be able to tell indignant constituents that in voting for new permissive legislation they are only obeying the courts – not creating new rights, but merely vindicating existing ones.
Ironically, like the South, polls suggest their constituents are already ahead of the politicians on these issues, with strong majorities of Northern voters recently being recorded by an RTÉ/BBC poll for legalising terminations in cases of fatal foetal abnormality or where pregnancies result from sexual crimes.
The Horner decision, which may still be appealed by the North’s attorney general, may yet, however, be rendered moot – and so redundant – if the Tories unfortunately honour their election pledge to repudiate the ECHR. They have promised to replace the Human Rights Act, which incorporates the Strasbourg court into UK law, with a Bill of Rights. Strasbourg’s jurisprudence, on the basis of which Mr Justice Horner ruled, would end up being purely advisory.
In the South, although the ruling is not binding – it was not made by the court itself, but is an interpretation of its law by a national court – Horner will nevertheless provide important ammunition for the movement to repeal the Eighth Amendment. The argument for repeal is certainly strengthened when pitched primarily as a human rights case for limited rights to abortion strictly in the two circumstances dealt with. And a further case on the issue may yet also wend its way to Strasbourg from Dublin.