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Women's rights 'breached' by Northern Ireland's abortion laws, judge says

Published 30/11/2015

Sarah Ewart, from Belfast, had to travel to England to have an abortion in 2013 after being told her unborn baby had no chance of survival
Sarah Ewart, from Belfast, had to travel to England to have an abortion in 2013 after being told her unborn baby had no chance of survival

An almost outright ban on abortion in Northern Ireland breaches human rights legislation, a High Court judge has ruled.

The landmark judgment delivered to Belfast High Court, could see a relaxation of the strict laws prohibiting women accessing terminations in cases of rape, incest or where there is a diagnosis of fatal foetal abnormality.

However, the region's Attorney General John Larkin has expressed "profound disappointment" and said he is considering grounds for appeal.

The high profile case was brought by the Northern Ireland Human Rights Commission (NIHRC).

Mr Justice Mark Horner told a packed courtroom: "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."

Unlike other parts of the UK, the 1967 Abortion Act does not extend to Northern Ireland where abortions are illegal except in very limited circumstances where the life or mental health of the mother is in danger.

Anyone who performs an illegal termination could be jailed for life.

Legal argument from both sides was heard over three days in June.

Delivering his ruling over more than two hours, Judge Horner said the failure to provide exceptions to the law in certain limited circumstances breached a woman's right to privacy.

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

The judge 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 court also heard that the near blanket ban, reinforced with criminal sanctions, placed a disproportionate burden on victims of sexual crime.

"She has to face all the dangers and problems, emotional or otherwise, of carrying a foetus for which she bears no moral responsibility and is merely a receptacle to carry the child of a rapist and/or a person who has committed incest, or both.

"In doing so the law is enforcing prohibition of abortion against an innocent victim of a crime in a way which completely ignores the personal circumstances of the victim.

"Weighed in the balance is the foetus incapable of an independent existence," said Judge Horner.

However, he said cases of serious malformation of the foetus should be given different consideration because of the potential to develop into a child, albeit with a mental and/or physical disability, that can enjoy life.

The legal challenge was taken against Northern Ireland's Department of Justice (DoJ) which, following a public consultation, had recommended a law change in circumstances of fatal foetal abnormality.

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

Mr Larkin, the chief legal adviser to the Stormont Assembly, was given special permission to address the court and argued that a law change would remove the rights of disabled unborn children.

Without a referendum, the judge said it was impossible to know how the majority of people viewed abortion.

But, he noted there was no political appetite for change.

Submissions were also made on behalf of Sarah Ewart, a 24-year-old who went public about travelling to England for an abortion in 2013 after being told her first child had a severe brain malformation and no chance of survival.

Ms Ewart was not present in court but her mother Jane Christie sat in the public gallery alongside Grainne Teggart, from Amnesty International, another third party intervener.

Further submissions were admitted from Precious Life, the Society for the Protection of the Unborn Child, Catholic clergy and the Alliance for Choice along with an anonymous individual referred to as AT.

Judge Horner urged people to read his judgment in its entirety.

"The judgment is for everyone to read, not just those with legal training," he said. "Please read the judgment in full and give it careful consideration before reaching a conclusion."

The NIHRC said legal proceedings had been launched as a last resort.

Speaking outside the court, Les Allamby, chief commissioner described the ruling as "historic".

He said: "We welcome today's landmark ruling. I think it is a good day for human rights.

"We only embarked on legal challenge when we couldn't solve this in any other way.

"I think it means, hopefully in the near future, that cases like Sarah Ewart will be able to get access to a service locally, free of charge and that is a really important step forward."

Any party seeking an appeal has six weeks to lodge papers with the court.

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