We are delighted to welcome this guest post from Dr Kathryn McNeilly, Lecturer in Law at QUB. Kathryn can be reached on firstname.lastname@example.org.
On Monday the Northern Ireland High Court declared Northern Ireland’s prohibition of abortion in cases of fatal foetal abnormality and in cases of sexual crime, up to the date when the foetus can exist independently, incompatible with UK human rights legislation. This is a significant move in a jurisdiction that has resisted liberalisation, and even open discussion of, abortion law due to the dominance of conservative socio-political views on reproduction and gender. How can we understand this decision and its wider context, and, perhaps most importantly, what does it mean for the future of abortion law in Northern Ireland?
In contrast to the rest of the UK, Northern Ireland has a highly restrictive law on abortion. The 1967 Abortion Act, which allows abortion to be legally carried out in a range of relatively widely defined situations, applies to the rest of the UK but not Northern Ireland. In contrast, abortion in Northern Ireland is governed by sections 58 and 59 of the Offences Against the Person Act 1961, section 25(1) of the Criminal Justice Act (NI) 1945 and a body of case law. This legal framework makes procurement of abortion a criminal offence except where carried out in good faith in order to prevent real and serious threat to the life or health of the woman which is permanent or long-term. In the contemporary global context, this legal framework is relatively unusual, certainly within Europe, and has raised significant human rights concerns.
While there is currently no ‘right to abortion’ in international human rights law, provision such as the right to life, the right to be free from inhumane and degrading treatment and the right to health bolster the argument for expansive access to termination services. As early as 1999 International Human Rights Treaty Monitoring Bodies, including the Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Committee on Economic, Social and Cultural Rights, indeed expressed concern regarding the compatibility of Northern Ireland’s abortion law with international human rights provision.
This week’s judgment is not the first time abortion has been raised in Northern Irish courts. In 2001 the Northern Ireland Family Planning Association instigated judicial review proceedings to challenge the absence of guidelines from the Northern Ireland Department of Health, Social Services and Public Safety on the circumstances in which termination of pregnancy does fall within the law. This review, most recently in the High Court again in 2013, did not seek to challenge the substantive law on abortion, and so compatibility of the current legal position with human rights provision was not the focus of these proceedings. However, even where human rights arguments were made, both the High Court and the Northern Ireland Court of Appeal dismissed discussion using the language of human rights.
Yet in more recent years public discourse on abortion seems to have shifted, providing an important context for this week’s decision. Since 2013 when Northern Irish woman Sarah Ewart shared her story of being required to travel to Britain to receive termination services for fatal foetal abnormality, the inadequacy and human rights concerns raised by a legal framework which does not permit termination in such circumstances began to be seriously discussed. Taking place with the backdrop of mounting critique of Ireland’s restrictive abortion provision following the Savita Halappanavar case, Northern Ireland’s abortion law was brought into sharp relief locally and internationally. Indeed, in 2013 the CEDAW Committee again expressed concern on the issue in their Concluding Observations on the UK’s seventh periodic report. In the midst of a Government consultation launched by Northern Ireland Justice Minister David Ford on the possibility of extending Northern Ireland’s abortion law to include fatal foetal abnormality, in late 2014 the Northern Ireland Human Rights Commission brought proceedings to judicially review the current position using the lens of human rights.
On Monday 30th November the High Court ruled in the Commission’s favour that current prohibition of access to abortion in cases of fatal foetal abnormality and sexual crime (i.e. incest and rape) was incompatible with the Article 8 right to private and family life under the European Convention on Human Rights. The court outlined that three possible options are available following this result; firstly, the court may read the current law in a way that is compliant with protection of Article 8 rights. Secondly, the court stated it may be satisfied that prosecution brought in relation to abortion procured in situations of fatal foetal abnormality or sexual crime would be an abuse. Thirdly, in the event that it is not possible to follow either of these two options the court may use section 4 of the Human Rights Act to make a declaration of incompatibility, which would compel the legislature to review the relevant legislation.
This decision is being reported and celebrated by many as a historic landmark, offering possibility to allow at least some of the estimated 1,000 women who travel from Northern Ireland to Britain each year to receive termination possibility to receive this service, and effective aftercare, at home. It is indeed important to note the significance of the decision in a context where discussion of possibilities beyond the current position has been consistently stifled. This case represents years, even decades, of cumulative hard work by those who have not given up on challenging the status quo, and have kept on using human rights discourse to highlight the difficulties and dangers that the current restrictive legal position produces for women facing crisis pregnancy.
However, given the track record of politico-legal grappling with abortion in Northern Ireland perhaps caution should be advised. Recalling that amendment of the legal framework on abortion has been raised in the Northern Ireland Assembly in recent years only to seek further restrictions on the current position, it is by no means a given that legislative change reflecting this week’s ruling will be forthcoming. It is also important to note that the High Court decision made clear that the prohibition on abortion generally was not considered a violation of Article 8, meaning that the decision is of limited use in challenging the criminalisation of abortion in the province on a wider scale. This is a considerable limitation, especially given the reminder of the chilling effects of the current framing of abortion in criminal terms with the trial of a woman who bought abortion medication for her daughter earlier this year. Nevertheless, this week’s decision should be regarded as a significant development, one that may be built upon and used as a tool to continue to advance more expansive possibilities for reproductive health and life in Northern Ireland.