High Court decides on Northern Ireland abortion law

"Rape and incest victims will now be allowed to have abortions in Northern Ireland"

Metro.co.uk, 30 November 2015

A judge has decided that Northern Ireland's law on abortion is a breach of women's human rights, but it remains in place for the time being.

Mr Justice Horner, sitting at the High Court in Belfast, found on 30 November that abortion legislation in Northern Ireland breached article 8 of the European Convention on Human Rights, which requires respect for a person's family life and personal autonomy.

He did so because it's generally against the law for a woman to have an abortion in Northern Ireland if there is a fatal foetal abnormality or if she has become pregnant as a result of sexual crime.

The judge said that refusing a mother an abortion when her foetus would be unable to live independently outside the womb was a "gross interference with her personal autonomy". So too was pregnancy resulting from rape or incest.

In his view, it was contrary to article 8 to deny a mother an abortion at any time in the event of a fatal foetal abnormality. In the case of a woman who became pregnant as a result of sexual crime, it was a breach of article 8 to deny an abortion up to the date when the foetus could survive outside the womb.

However, judges in the United Kingdom have no power to overturn primary legislation that they regard as contrary to the human rights convention. Instead, they have two options under the Human Rights Act 1998.

Section 3 of the act requires judges to read legislation in a way that is compatible with convention rights "so far as it is possible to do so". This is known as "reading down" legislation.

Section 4 says that if it's not possible to read down legislation then the court may make a declaration of incompatibility. That doesn't change the law—though it allows for fast-track reform if ministers agree.

Mr Justice Horner adjourned the case for further submissions on these two options from the Northern Ireland Human Rights Commission and the Northern Ireland government. He suggested it might be possible to read down the existing legislation by finding that any decision to prosecute a woman in the circumstances he outlined would be an abuse of the law.

But the judge also recognised that the case was bound to go to the Court of Appeal in Northern Ireland. So the parties may decide to appeal against the judgment rather than argue about how it should be given effect.

In the meantime, obtaining an abortion outside Northern Ireland remains the only legally safe option for women in these circumstances.