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Northern Ireland abortion ban breaches human rights, judge rules

1 December 2015


The Department of Justice has six weeks to decide whether to appeal the decision

The Belfast High Court has ruled that Northern Ireland's abortion law is in breach of human rights law.

The landmark ruling paves the way for abortion to be legalised in cases of foetal disability, rape or incest.

The judicial review was brought by the Northern Ireland Human Rights Commission (NIHRC), who have been campaigning for a more liberal abortion law. They argued that current legislation amounted to 'inhuman and degrading treatment' and is in breach of the EU Convention on Human Rights.

The case was taken against the Department of Justice which had recommended changing the law to allow abortion in cases where a fatal disability has been detected in the unborn child. Many of these cases would be late-term abortions, as certain conditions can only be detected later in pregnancy.

'Inhuman and degrading'

However, the NIHRC said the Department of Justice had not gone far enough and argued the current law was incompatible with human rights legislation regarding inhuman and degrading treatment, privacy and discrimination.

The 1967 Abortion Act applies only to England, Scotland and Wales, not to Northern Ireland.

Judge Mr Justice Mark Horner told the Belfast High Court: "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."

The Department of Justice has six weeks to decide whether to appeal the decision.

"No life to protect"

According to the Irish Independent:

Judge Horner said without a referendum it was impossible to know how the majority of people viewed abortion and noted there was no political will to change the law.

In cases of fatal foetal abnormality (FFA), the judge concluded the mother's inability to access an abortion was a "gross interference with her personal autonomy".

He said: "In the case of an FFA there is no life to protect. When the foetus leaves the womb, it cannot survive independently. It is doomed. There is no life to protect.

"Therefore, even on a light touch review it can be said to a considerable degree of confidence that it is not proportionate to refuse to provide an exception to the criminal sanctions imposed on the impugned provisions."

The judge also claimed the current law placed a disproportionate burden on victims of sexual crime.

"Dangerously flawed"

SPUC's Liam Gibson condemned the decision as clearly lacking in objective reasoning, stating:

"The ruling by Judge Mark Horner is dangerously flawed.  The judge misrepresented the protection of children before birth in case law and statute law in Northern Ireland. He also confused the separate legal issues of viability and the capacity to be born alive.

"Not one universal human rights treaty recognises a right to abortion. However, the right to life is shared by all members of the human family. The Declaration on the Rights of the Child (DRC) acknowledges that ‘the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth'. The DRC explicitly states that the need for such special safeguards is 'recognised in the Universal Declaration of Human Rights'."

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