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03 December 2015

Decision in the Northern Ireland human rights abortion challenge

Decision in the Northern Ireland human rights abortion challenge

In a case brought by the Northern Ireland Human Rights Commission a Belfast judge has attempted to change the law in Northern Ireland and make abortion more widely available. In this controversial ruling the Judge describes mothers as 'merely a receptacle' and denies that unborn children have an Article 2 right to life.  

The case has significant implications. Firstly, the judge decided to ignore the extensive consultation process that had been run by the Department of Justice. The Department consulted on the issue of allowing abortion following a sexual crime but did not recommend a change in the law. In relation to 'fatal fetal abnormality', the Department's consultation recommended a change in the law, but acknowledged how difficult it would be to achieve clarity. Children with anencephaly and Triseme 13, which some consider fatal have survived and thrived for months and even years. The judge argued that, "in the case of FFA there is no life to protect . . . it is doomed... there is nothing to weigh in the balance." As well as being highly insensitive, this opinion is medically incorrect. Abortion is only of concern to the criminal law precisely because a life is ended.

The judge said that, "this issue is unlikely to be grasped by the legislature in the foreseeable future" and so he took it upon himself to change the law. However, the legislature has grappled with the issue and run a public consultation. It has decided not to change the law. This is very different to not grasping the issue. As the Judge noted, States have a wide measure of appreciation on the protection of the rights of the unborn. The UK government has already stated that it believes Northern Ireland's abortion law is complaint. The judge has over-ruled the wide discretion the Assembly has in law.

Sexual crime is a grievous abuse of a woman's dignity and rights.  Abortion cannot undo the terrible harm, and tragically creates a second innocent victim. The ruling on this ground is even more concerning – the "judge noted that the foetus does not have any Article 2 rights." In simple terms, the unborn child is not a human being – so what is it? The law has no category of outside of personhood, except property.

The judge also ignores the practical realities of such a change in the law. As the Department of Justice noted, almost no jurisdiction makes specific legal provision for abortion following a sexual crime. This is because practically, it is almost impossible to prove rape or incest within a timeframe that will allow for an abortion. The judge may have changed the law, but without any explanation as to how this will work in practice.

The Health Minister has been working on guidelines for some time. These have been circulated to the Executive and are due to be published soon. They have had input from the medical profession and a range of other interested parties. Surely this is a better way to proceed, than allowing one unelected man to rewrite our delicate law?

Finally, we must remember that the court did refuse the Human Rights Commission's submission that abortion law in Northern Ireland amounted to torture. The Commission also wanted to allow abortion if the unborn child had a serious malformation. The judge noted that is was illogical to call for no discrimination of those born with a disability such as Down's Syndrome while permitting selective abortion to prevent them being born in the first place. The judge even said, 'this smacks of eugenics'. Questions must be asked about a Commission that champions such practices.

The Attorney General has indicated his 'profound disappointment' with the judgment and an appeal seems likely. The law struck a balance in protecting the life, health and dignity of women, the unborn child and community. We can only hope that this is maintained and democracy respected.