A high court judge has ruled that Northern Ireland’s almost outright ban on abortion breaches the human rights of women and girls, including rape victims.
The historic judgment, delivered in Belfast on Monday, could lead to women and girls who are the victims of rape and incest as well those suffering from fatal foetal abnormalities having terminations in Northern Irish hospitals.
The Royal College of Midwives has welcomed the landmark judgement in Belfast High Court. Breedagh Hughes, the RCM’s Northern Ireland Director, said it would give some legal protection for all health professionals faced with the possibility of carrying out terminations in local hospitals
Hughes said: “Today’s ruling is extremely welcome. It now gives midwives and other health professionals legal protection and a release from the fear of prosecution. This will enable midwives to offer women who have a diagnosis of fatal foetal anomaly the appropriate care, support and advice that they also have often been denied because of the Assembly’s inertia.”
Hughes said that the failure of local politicians to legislate in favour of some limited forms of abortion had put her members and other medical staff at risk of arrest and prosecution
But Northern Ireland’s attorney general later said he was considering whether to appeal the ruling.
At present, under a 19th-century law, local medical teams could be jailed for life for carrying out abortions even in these circumstances. Unlike the rest of the UK, the Abortion Act 1967 has never applied to Northern Ireland and since devolution was restored the Stormont assembly has resisted any attempt to relax the near-total ban on terminations in local hospitals.
Abortions are only permitted in the region’s health service if the life of a mother is directly under threat or in cases in which there would be lasting long-term negative effects on her health by continuing with the pregnancy.
In his ground-breaking ruling and referring to cases of rape, incest and fatal foetal abnormality, Mr Justice Horner told the high court in Belfast: “In the circumstances, given this issue is unlikely to be grasped by the legislature in the foreseeable future, and the entitlement of citizens of Northern Ireland to have their convention rights protected by the courts, I conclude that the article eight rights of women in Northern Ireland who are pregnant with fatal foetal abnormalities or who are pregnant as a result of sexual crime are breached by the impugned provisions.”
Referring to political inaction at Stormont over the abortion question, Horner also suggested that a referendum might have to be held to enact his conclusions on reforming local abortion law.
The judge said that without a referendum it was impossible to know how the majority of people in Northern Ireland viewed abortion.
Welcoming the judgment, Les Allamby, the head of the Northern Ireland Human Rights Commission (NIHRC), said: “In taking this case we sought to change the law so that women and girls in Northern Ireland have the choice of accessing a termination of pregnancy locally in circumstances of fatal foetal abnormalities, rape or incest, without being criminalised for doing so.
“We are please that today that the high court has held that the current law is incompatible with human rights and has ruled in the commission’s favour.
“Today’s result is historic, and will be welcomed by many of the vulnerable women and girls who have been faced with these situations. It was important for the commission to take this challenge in its own name, in order to protect women and girls in Northern Ireland and we are delighted with the result.”
John Larkin QC, meanwhile, said he was “profoundly disappointed by this decision and I am considering grounds for appeal”.
The attorney general came under sustained criticism from pro-choice campaigners three years ago when he called for a Stormont investigation into the opening of the Marie Stopes Clinic. He even offered politicians advice on how to ensure no kind of termination was carried out by the clinic’s Belfast office.
His intervention prompted claims that he was overstepping his role as a lawmaker in the province.
Back in June, a number of organisations and individuals made submissions to the Belfast high court. They included Sarah Ewart, who went public about having to travel to London to access termination services in 2013 after her first baby was diagnosed with anencephaly, a severe brain malformation.
In her case, the NIHRC had argued that forcing women like Ewart to leave the jurisdiction away from support networks amounted to cruel, inhuman and degrading treatment and that the current law was incompatible with the European convention on human rights, violating the human rights of women and girls.
Ewart welcomed the judge’s ruling on Monday and said she hoped other women would no longer have leave home for England in order to get a termination.
She said: “I, and many women like me, have been failed by our politicians. First, they left me with no option but to go to England for medical care. Then, by their refusal to change the law, they left me with no option but to go to the courts on my and other women’s behalf.
“I am an ordinary woman who suffered a very personal family tragedy, which the law in Northern Ireland turned into a living nightmare.”
Bernadette Smyth, who heads the anti-abortion group Precious Life, branded the high court judgment “undemocratic”.
She claimed the ruling could “open the floodgates” for abortion on demand not just in limited circumstances – a charge the NIHRC has rebutted, pointing out that its court case was not about extending the 1967 act to the province.
Northern Ireland’s Department of Justice, which the commission took to court over the abortion issue, has six weeks to decide whether to appeal.
At least 1,000 women and girls from Northern Ireland travel to hospitals in Britain for terminations every year. Official figures for 2013, for instance, suggest 800 Northern Irish females had abortions in Britain – although that number is regarded as an underestimate. Among the 800 was a 13-year-old who became pregnant through incest.
The only law applying to abortion in Northern Ireland is the Offences Against the Persons Act 1861, which contains a life sentence for anyone convicted of carrying out a termination even in cases of rape or incest.
Amnesty International said it was shameful that laws on abortion “date back to the 19th century and carry the harshest criminal penalties in Europe”.
Grainne Teggart, of Amnesty’s My Body, My Rights campaign, said: “Today’s court decision is a damning indictment of the Northern Ireland executive’s failure to prioritise women’s healthcare. It’s shameful that the courts have had to step in because politicians have repeatedly failed Northern Ireland’s women.” NEW