The Northern Ireland Human Rights Commission’s Application  NIQB 96 (30 November 2015)
The High Court of Justice in Northern Ireland has found that the failure of the law in Northern Ireland to provide exceptions in two circumstances to the prohibition of abortion is contrary to Article 8 of the European Convention on Human Rights. Sections 55 and 59 (Offences Against the Person Act 1861) and section 25 (Criminal Justice Act (NI) 1945) prohibit and punish any act that is intended to procure a miscarriage, with the one exception being if that is done for the purpose of preserving the mother’s life. The Court held that the following two exceptions to this prohibition should be permitted: (1) cases of fatal foetal abnormality (FFA) for termination at any stage; and (2) pregnancies due to rape and incest (sexual crime) for termination up to the date when the foetus is capable of existing independently of the mother.
The Court has called for further submissions from each party before deciding what relief to give to reflect the findings.
The Northern Ireland Human Rights Commission brought the application for a declaration that the rights of women in Northern Ireland who are pregnant with a serious malformation of the foetus (SMF) (including an FFA), or who are pregnant as a result of sexual crimes, are breached by the legislation. The Commission contended that Articles 3, 8 and 14 of the Convention were breached by the provisions above and sought a declaration of incompatibility under the Human Rights Act 1998.
The current law in Northern Ireland provides that it is only lawful to perform a termination of a pregnancy for the purpose of preserving the life of the mother. Justice Horner limited the scope of the issues to whether the failure to provide certain limited exceptions to the ban on abortion, namely in cases where there is an SMF (including a FFA) or where the pregnancy is a consequence of sexual crime, is in compliance with the rights under the Convention. The Commission adduced evidence from Sarah Ewart and “AT” who were both refused an abortion in Northern Ireland after being told that the foetus they were carrying would not and could not survive.
The Court distinguished between SMF and FFA affected pregnancies, finding that a failure to provide an exception to terminate in the latter is a breach of the Convention, while it is not in the case of SMFs. In the case of SMFs, Justice Horner stated that there should be “equality in treatment” between the foetus which will develop into a child without physical or mental disability and the foetus that will develop into a child with such a disability which is non-fatal, and therefore no exception is required to be compliant with the Convention.
Article 8 of the Convention
The Court found that Article 8 of the Convention, the right to respect for private and family life, is breached by the interference the legislative provisions have with the personal autonomy of women pregnant with FFAs or as a result of sexual crime and such an interference is not justified. In the case of FFAs, the Court found that it is “illegitimate and disproportionate to place a prohibition on the abortion of a foetus doomed to die”. By contrast, the Court found that the interference is legitimate in the case of SMFs as the foetus will be viable but faces non-fatal disability.
In reaching its decision with respect to women who are pregnant as a result of a sexual crime, the Court said that the current law places a disproportionate burden on the victim of a sexual offence by effectively forcing her to carry the child of a rapist and/or a person who has committed incest, or travel to another country to have an abortion. The Court held that it “prevents any consideration of the interests of the women whose personal autonomy has been so vilely and heinously invaded” and that a “law so framed can never be said to be proportionate”.
The Court also considered the stage of the pregnancy and the bearing that this may have on whether the Convention is breached. In the case of a FFA the Court found that a failure to provide an exception to allow an abortion to occur at any stage amounted to a breach of Article 8. Where the pregnancy is the result of a sexual crime, an exception should have been provided for a termination to occur up to the date when the foetus is capable of existing independently of the mother.
Article 14 of the Convention
Justice Horner did not consider it necessary to consider Article 14 (which prohibits discrimination) given the conclusion reached in respect of Article 8.
Article 3 of the Convention
Article 3, which provides a prohibition on torture, was not found to be breached, on the basis that there is no right to abortion in the Convention and the State is not responsible for a woman having a FFA nor women being impregnated as a result of sexual crime.
The Court gave the parties leave to make further submissions on whether the legislation can be read in a way that is compliant with the Convention before the Court determines what relief should be given. If the Court determines that the law cannot be read in compliance with the Convention, it would then be appropriate to make a declaration of incompatibility.
The final decision of the Court, after receiving the parties’ further submissions, will dictate the significance of this case. The law in Northern Ireland will not automatically change as a result of a declaration of incompatibility and it will be up to Parliament to determine whether to amend the law.
In Australia, abortion is legal in varying forms in each State. In the ACT, Victoria, Tasmania and Western Australia, abortion is legal provided it occurs within the required timeframe and therefore this decision is less relevant in those jurisdictions. In South Australia and the Northern Territory, however, termination is only permitted where a woman’s physical and/or mental health is endangered, and in the case of serious foetal abnormality. Abortion is only legal in Queensland and New South Wales when a woman’s physical and/or mental health is in serious danger. In these jurisdictions the outcome of this decision may be more relevant.
The full judgment can be found here.
Carmelene Greco is a summer clerk at King & Wood Mallesons