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Legal judgement on terminations 'took a wrong turn'

By Alan Erwin

Published 22/06/2016

Sarah Ewart, who went to England for an abortion, outside court this week
Sarah Ewart, who went to England for an abortion, outside court this week
Pro-life campaigner Bernie Smyth

The Department of Justice committed no unlawful act in its handling of Northern Ireland's abortion regime, the Court of Appeal has heard.

Judges were also told a landmark ruling that the near-blanket ban on terminations breaches the European Convention on Human Rights went further than Strasbourg jurisprudence.

On the second day of a new battle over abortion laws here, counsel for the department argued the verdict took "a wrong turn" in holding a foetus had no Article 2 right to life.

Unlike other parts of the UK, terminations are currently only legal in Northern Ireland to protect the woman's life, or if there is a risk of serious damage to her wellbeing.

Last year, the High Court ruled that the failure to provide exceptions to the near-blanket ban for cases of fatal foetal abnormalities (FFAs) and victims of rape or incest breaches entitlements to respect for private and family life. Mr Justice Horner also declared the law incompatible with the Human Rights Act.

His decision is now being appealed by both the department and Attorney General John Larkin QC.

The NI Human Rights Commission is mounting a cross-appeal in a bid to have the regime declared inhuman, degrading and discriminatory. Its action began after the department launched a public consultation on amending the law.

That concluded with a proposal for new legislation in cases of FFA. But with no proposed changes covering pregnancies resulting from sexual crime, the commission insisted the consultation did not go far enough.

Tony McGleenan QC, for the department, told the court: "The view of the department is that they had committed no public law wrong and engaged in no unlawful act that would warrant the intrusive remedies sought by the applicant."

He argued there was no imperative under the European Convention to modify the 1861 Offences Against the Person Act governing abortion.

Pressed on a finding that the foetus had no Article 2 right, Mr McGleenan claimed: "The judge took a wrong turn."

He said the European Court of Human Rights had not determined whether or not Article 2 protection extends to the unborn child. "That's an issue that the Strasbourg court has deliberately not resolved," he added. The appeal continues.

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