Britain’s Supreme Court has said Northern Ireland’s strict abortion law violates human rights laws but dismissed the appeal over a technicality.
A majority of judges said the existing law does violate European human rights legislation in the cases of fatal foetal abnormality, rape and incest.
But it has also said that it does not have the power to make a formal ruling on the issue, because the the Northern Ireland Human Rights Commission (NIHRC) which brought the case was not itself an actual victim or potential victim.
Four out of the seven Supreme Court justices who considered the issue found that the current law, which bans abortion except when a mother’s life is at risk, was incompatible with the European Convention on Human Rights (ECHR).
However, a different group of four justices ruled that the Northern Ireland Human Rights Commission (NIHRC), which had initiated legal proceedings to try and liberalise the law, did not have the right to bring the case.
“As such, the court does not have jurisdiction to make a declaration of incompatibility (with human rights law) in this case,” the court said in a summary of the decision.
So what next?
A Deputy Supreme Court president Lord Mance said the present law “clearly needs radical consideration.”
In a written ruling he said that those who do have the power to make changes should “at as early time as possible”, in the light of the “ongoing suffering” it is causing women.
Another of the justices making the ruling, Lord Kerr, said that where it is clear a foetus is suffering from a fatal abnormality, there is “no justification” in inflicting on the mother the “appalling prospect” of having to carry it to full term.
The judge also said the blanket ban was “disproportionate” in cases of rape and incest.
Your move, Theresa May...
Theresa May has been resisting pressure to reform the region’s strict abortion laws because her fragile administration depends on the support of the 10 Democratic Unionist Party MPs – who are strongly opposed to terminations.
Downing Street has maintained any reform in Northern Ireland “is an issue for Northern Ireland”. Campaigners are interpreting the ruling as a success and claim it clears the path for a fresh challenge.
The head of Humanists UK, Andrew Copson, said: “Today’s ruling sends a very strong, clear message to the UK Government. It cannot wait for the Northern Ireland Assembly to reconvene and potentially act – it must act now in itself.
In a tweet, the organisation said: “To be clear, the Supreme Court ruled that Northern Ireland’s abortion ban breaches human rights law, but the NIHRC didn’t have proper standing to bring the case.
“This is a win! If a woman brought the case tomorrow, the abortion ban would be over.”
Rosa Curling, from the law firm Leigh Day which represented a coalition of healthcare charities and women’s rights organisations alongside the NIHRC, said: “This is a momentous day for women in Northern Ireland. There are no longer any excuses for Theresa May’s government to deny the same rights to women in Northern Ireland as are granted to them in every other part of the United Kingdom.
Sophie Walker, leader of the Women’s Equality Party, said: “Today’s Supreme Court decision has confirmed that women’s human rights are being systematically violated by the archaic and abhorrent abortion laws in Northern Ireland... We will never stop fighting until abortion is decriminalised.”
Dr Deirdre Duffy, senior lecturer in social care at Manchester Metropolitan University, said that the UN Commission to End Discrimination Against Women had already stated that the lack of access to abortion services in Northern Ireland is a human rights violation, and that human rights is not a devolved power.
She said: “The fact that successive governments have refused to address what is the quintessential ‘postcode lottery’ for fear that it will be opposed by ultra conservative political elites illustrates their willingness to defend social inequality and their ignorance of public opinion in Northern Ireland.
“While Westminster governments decide whether they can respect the human rights of UK citizens living in NI, women import abortion pills and travel to seek abortion. The current prohibition is not a ‘Northern Irish solution’, it is ‘Westminster ignorance’.”
Bernadette Smyth, director of Northern Ireland-based anti abortion campaign group, Precious Life, said: “What happened here today was upholding democracy. This court made a ruling that this court has no right to make decisions for Northern Ireland.
“Regardless of their opinions, this is a law in Northern Ireland and that is where these decisions should be made.”
Speaking outside the Supreme Court, she added: “This is about the Northern Ireland Human Rights Commission misusing public funding.
“Stormont has the right to make legislation and this law was debated in 2016 and the decision was not to change that law. A consultation was undertaken and the people said a change should not be made.
“All children’s with disabilities should be protected. Our laws matter because every life matters.”
Abortion in Northern Ireland
Unlike other parts of the UK, the 1967 Abortion Act does not extend to Northern Ireland. Abortion is illegal except where a woman’s life is at risk or there is a permanent or serious danger to her mental or physical health. Anyone who unlawfully carries out an abortion could be jailed for life.
The UK Government has resisted calls to step in an legislate amid the ongoing power-sharing impasse in Northern Ireland, insisting that any decision on abortion in the region has to be taken by locally elected politicians at Stormont.