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Saturday 2 December 2023 Dublin: 2°C
landmark ruling

Belfast court rules abortion should be available in cases of rape and fatal foetal abnormality

“It does not protect morals to export the problem to another jurisdiction and then turn a blind eye.”

Updated: 4.25pm

THE BELFAST HIGH Court has ruled that abortion laws in Northern Ireland breach European human rights law.

The Northern Ireland Human Rights Commission (NIHRC) had called for abortion to be legalised in cases of serious foetal malformation, rape or incest.

A judicial review hearing was held in the summer.

The 1967 Abortion Act in the UK does not extend to Northern Ireland. Terminations are only allowed if a woman’s life is at risk, or if there is a permanent or serious risk to her mental or physical health.

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

Today Mr Justice Horner said women who are the victims of sexual crime and whose baby has a fatal foetal abnormality are entitled to exemptions in the law.

He found that the abortion legislation in Northern Ireland breached Article 8 of the European Convention on Human Rights by failing to provide an exception to the prohibition on abortion in cases of:

  • A fatal foetal abnormality (at any time during the pregnancy);
  • Where the pregnancy is the result of sexual crime (up to the date when the foetus is capable of existing independently of the mother).

‘One law for the rich…’

When giving his judgement, Justice Horner said:

If it is morally wrong to abort a foetus in Northern Ireland, it is just as wrong morally to abort the same foetus in England. It does not protect morals to export the problem to another jurisdiction and then turn a blind eye.
If the aim is to prevent abortion, then it is surely no answer to say that abortion is freely available elsewhere and that necessary services can be easily accessed in an adjacent jurisdiction.
There is no evidence before this court, and the court has in no way attempted to restrict the evidence adduced by any party, that the law in Northern Ireland has resulted in any reduction in the number of abortions obtained by Northern Irish women.
Undoubtedly, it will have placed these women who had to have their abortions in England under greater stress, both financial and emotional, by forcing them to have the termination carried out away from home.
There can be no doubt that the law has made it much more difficult for those with limited means to travel to England. They are the ones who are more likely to be greatly affected in their ability to terminate their pregnancy if they cannot obtain charitable assistance.
The protection of morals should not contemplate a restriction that bites on the impoverished but not the wealthy. That smacks of one law for the rich and one law for the poor.

Here’s a summary of the judgement. The Department of Justice has six weeks to decide whether to appeal it.

The NIHRC welcomed the decision, describing it as a “landmark ruling“.

“In taking this case we sought to change the law so that women and girls in Northern Ireland have the choice of accessing a termination of pregnancy locally in circumstances of fatal foetal abnormalities, rape or incest, without being criminalised for doing so.

Today’s result is historic, and will be welcomed by many of the vulnerable women and girls who have been faced with these situations.

The Termination for Medical Reasons (TFMR) group welcomed the decision and called on legislators in the Republic to “carefully consider the judgement”.

“We call on them without any delay to make provisions for pregnant women affected by these conditions. They have the same practical obstacles, financial stresses and emotional traumas whether north or south of the border.”

Bernadette Smyth, of anti-abortion group Precious Life, told the BBC: “This is an undemocratic decision today. It will clearly see, long-term, the opening of the floodgates.”

Dr Ruth Cullen of the Pro-Life Campaign said the ruling is “a very frightening development” and “deeply hurtful to families of babies diagnosed with life-shortening conditions”.

“Today’s decision is a reminder that abortion allows some human lives to be judged less worthy of legal protection. It is the role of the judicial system to uphold and protect basic human rights like the right to life. Today’s decision means that in the eyes of the court certain categories of human beings are not deserving of legal protection,” Cullen said.

Strict rules

The Marie Stopes Clinic provides terminations throughout the UK, but operates under stricter rules in Northern Ireland.

An abortion can be carried out to preserve the life of the mother if the pregnancy is under nine weeks and four days.

The Republic

Repealing the Eighth Amendment is one of the main political talking points ahead of next year’s general election.

Taoiseach Enda Kenny has said he intends to call a constitutional convention on the amendment should he be returned to power.

Last week he told his party colleagues he would consider allowing a free vote on the possibility of repealing the amendment, which gives equal right to a mother and her unborn child.

Labour Women recently proposed legislation that would allow for terminations on grounds of:

  • Risk to life;
  • Risk to health;
  • Rape;
  • Fatal foetal abnormality.

Colm O’Gorman, executive director of Amnesty International Ireland, said today’s decision must be acted on – both in Northern Ireland and the Republic.

The Irish Government is now on notice that it too is violating the European Convention on Human Rights. It denies women and girls access to abortion in these cases.

“In fact, it doesn’t even allow access to abortion on health grounds as required under international human rights law, so its abortion law is more restrictive and abusive.”

Read: Kenny to call convention on abortion if returned to power

Read: This is the law that Labour wants to replace the 8th Amendment

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