The High Court has delivered a seminal judgment on the absence of exceptions to the general prohibition on abortion in cases of Fatal Foetal Abnormality, pregnancies arising out of a sexual crime and serious malformation of the foetus.
The application from the Northern Ireland Human Rights Commission was about whether the failure to provide certain limited exceptions to the general prohibition on abortion in Northern Ireland is in compliance with the European Convention on Human Rights.
The Commission sought a declaration that the administering of drugs or using instruments to procure abortion, procuring drugs, &c. to cause abortion and punishment for child destruction are incompatible with Article 3 (prohibition of torture), Article 8 (right to respect for family and private life) and Article 14 (prohibition on discrimination) of the Convention.
In relation to Article 3, Mr. Justice Horner held that there is no breach in the additional stress of a pregnant women having to travel to England for an abortion.
The Commission failed to establish that there is a potential for pregnant women in cases of Fatal Foetal Abnormality, pregnancies arising out of a sexual crime or serious malformation of the foetus to receive treatment that would amount to inhuman or degrading treatment.
In his judgment, Mr. Justice Horner reasoned that there is no suggestion that women who become pregnant do not get the best of medical treatment during their pregnancies. Moreover, there is nothing preventing women from travelling to England to access medical facilities there to obtain a termination. The Director of the Public Prosecution Service has also made it clear that no one assisting any of these pregnant women will face criminal prosecution in Northern Ireland should their pregnancies be terminated in England.
He reasoned that similar stress might also be inflicted on a woman who becomes pregnant as a result of a consensual relationship due to an error or a "contraceptive malfunction". It depends on both the "personal circumstances" and "psychological make-up" of the woman concerned, he concluded.
But Mr. Justice Horner did find that the absence of exceptions to the general prohibition on abortion in cases of Fatal Foetal Abnormality and pregnancies arising out a sexual crime up to the point where the foetus becomes capable of existing independently of the mother, violates Article 8 of the Convention.
On Fatal Foetal Abnormality, Mr. Justice Horner emphasised that there is no life to protect because the foetus cannot survive independently outside the womb. He also cited the lack of evidence before the Court that even a "substantial section [...] never mind a majority", of the community in Northern Ireland requires a mother to carry such a foetus full term.
On pregnancies arising out of a sexual crime, Mr. Justice Horner found that the law places a "disproportionate burden" on a victim of sexual crime. The law makes no attempt to balance the rights of the women:
By imposing a blanket ban on abortion, reinforced with criminal sanctions, it effectively prevents any considerations of the interests of the woman whose personal autonomy in those circumstances has been so vilely and heinously invaded. A law so framed, can never be said to be proportionate.
However he rejected the submission that serious malformation of the foetus violates Article 8, despite acknowledging the previous recognition that the criminalisation of abortion in such cases interferes with a woman's autonomy.
Mr. Justice Horner also held that the criminalisation of the particular categories of pregnant women does not breach Article 14, when considered together with Article 8. Moreover, he found it "strictly speaking unnecessary" to consider Article 14, given his findings under Article 8.
In respect of the relief sought by the Commission, Mr. Justice Horner expressed his intention to grant a declaration of incompatibility for three reasons.
The first reason is because the identified provisions of law are incompatible with Article 8 of the Convention in respect of those women who have to carry a foetus with Fatal Foetal Abnormalities and, or who are pregnant as a result of a sexual crime.
The second reason is twofold. One, by not making a declaration of incompatibility the Court would be abandoning the immediate future of those women. Two, these matters have not been debated by the Assembly in Northern Ireland and are unlikely to be debated in the foreseeable future.
While the third reason is because there has been no hearing on these matters in Northern Ireland which would be binding or requires the Court to revise its opinion.
In respect of the relief sought by the Commission, Mr. Justice Horner expressed his intention to grant a declaration of incompatibility for three reasons.
The first reason is because the identified provisions of law are incompatible with Article 8 of the Convention in respect of those women who have to carry a foetus with Fatal Foetal Abnormalities and, or who are pregnant as a result of a sexual crime.
The second reason is twofold. One, by not making a declaration of incompatibility the Court would be abandoning the immediate future of those women. Two, these matters have not been debated by the Assembly in Northern Ireland and are unlikely to be debated in the foreseeable future.
While the third reason is because there has been no hearing on these matters in Northern Ireland which would be binding or requires the Court to revise its opinion.
