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Our unelected judiciary has overreached on abortion

By Peter Lynas

Published 03/12/2015

Disappointed: John Larkin
Disappointed: John Larkin

A Belfast judge has laid the groundwork for a change in the law here to make abortion more widely available. In his ruling he described mothers as "merely a receptacle" and denied unborn children have a right to life. The case has significant implications.

Firstly, the judge ignored the consultation process run by the Department of Justice, which consulted on allowing abortions after sexual crimes but did not recommend a change in the law.

In relation to fatal foetal abnormality, the department's consultation did recommend a change but acknowledged how difficult clarity would be. Children with anencephaly and trisomy 13, which some consider fatal, have survived months, even years. Most respondents to the consultation did not want to see a change.

In what appears to be a significant judicial overreach, the judge said: "This issue is unlikely to be grasped by the legislature in the foreseeable future."

However, the legislature grappled with the issue and decided not to change the law, which is different than not grasping the issue. As the judge noted, States have "a wide measure of appreciation on the protection of the rights of the unborn". The UK Government has already stated it believes Northern Ireland's abortion law is compliant. The judge has ignored the discretion the Assembly has in law.

The judge argued that "in the case of fatal foetal abnormality, there is no life to protect. It is doomed". As well as being insensitive, this opinion is medically incorrect. Abortion is only a crime if a life is ended. If there is no life to protect, there is no need to change the law.

Sexual crime is a grievous abuse. Abortion cannot undo the terrible harm and, tragically, creates a second innocent victim. The ruling here is more concerning. The "judge noted the foetus does not have any Article 2 rights". But if the unborn child is not a human, what is it?

The judgment also ignores the practical realities. As the Department of Justice noted, almost no jurisdiction allows abortion after a sexual crime. This is because it is almost impossible to prove rape or incest within a timeframe allowing for an abortion.

The judge failed to grasp or explain how this will work in practice. The Health Minister has been working on guidelines for some time. These have been circulated to the Executive and are due to be published. They have had input from the medical profession and interested parties. Surely this is a better way to proceed, rather than allowing an unelected man to rewrite the law?

We must also remember the court refused the Human Rights Commission's submission that abortion law amounted to torture.

The commission also wanted to allow abortion if the unborn child had a serious malformation. The judge noted that it was illogical to call for no discrimination against those born with a disability while permitting selective abortion to prevent them being born in the first place. Questions must be asked about a commission that supports such discrimination.

Attorney General John Larkin indicated his "profound disappointment" with the judgment, and an appeal is likely. The law struck a balance in protecting the life, health and dignity of women, the unborn child and community. We can only hope that this is maintained and democracy respected.

  • Peter Lynas is Northern Ireland director of the Evangelical Alliance

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