The Belfast High Court on Monday made a landmark judgment that would make abortion legal in Northern Ireland in cases of rape and incest and fatal foetal abnormality.
Mr Justice Mark Horner held that abortion legislation in Northern Ireland breached Article 8 of the European Convention on Human Rights (ECHR) by failing to provide an exception to the prohibition of abortion in cases of fatal foetal abnormality at any time during pregnancy or where the pregnancy is the result of sexual crime - up to the date when the foetus is capable of existing independently of the mother.
The judge under Article 8, which provides the right to privacy, largely supported the application by the Northern Ireland Human Rights Commission (NIHCR)to liberalise abortion legislation in relation to rape, incest and fatal foetal abnormality.
The commission had also sought to make abortion permissible in Northern Ireland in cases of serious malformation of the foetus but this was rejected by Mr Justice Horner.
The judge has asked the three parties in the case - the commission, the North’s Department of Justice and the Attorney General John Larkin QC - to consider whether the ruling can be applied under current legislation or whether it will have to be referred to the Northern Assembly.
The North’s Attorney General John Larkin, QC, said he was “profoundly disappointed” at the decision and was now considering “the grounds for appeal”.
The Department of Justice is also considering how to respond to the judgment.
Les Allamby, the head of the commission described the judgment as “historic” and 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,” he said.
“We are pleased that today that the High Court has held that the current law is incompatible with human rights and has ruled in the commission’s favour.”
Mr Allamby said the result would be “welcomed by many of the vulnerable women and girls who have been faced with these situations”.
“It was important for the commission to take this challenge in its own name in order to protect women and girls in Northern Ireland and we are delighted with the result,” he said.
The commission had successfully applied for a review of the existing abortion law last February leading to its formal case opening in June.
Abortion is currently legal in Northern Ireland where there is a threat to the life of the woman or where there is a risk of a serious and adverse effect on her physical or mental health which is either long term or permanent.
Proposed change
Separately, the North’s Department of Justice following a consultation has recommended that abortion be permitted in Northern Ireland in cases of fatal foetal abnormality. This proposed change in the law would not apply to cases of rape and incest.
A number of groups made submissions in the case including the Family Planning Association, the Alliance for Choice and Amnesty International who want abortion law liberalised, and the Northern Catholic bishops, the Society for the Protection of Unborn Children and Precious Life who favour the status quo.
Sarah Ewart also made a written submission. She came to public prominence in 2013 when she was denied an abortion in Northern Ireland. Her unborn baby had been diagnosed with anencephaly, a severe brain condition which meant the baby would die in the womb or was only likely to live for a very short time after birth. She had a termination in England at 20 weeks.
At a hearing in June, Natalie Lieven QC, representing the commission, said “beyond a shadow of a doubt” Ms Ewart was a “victim” of current abortion law in Northern Ireland.
Ms Lieven contended that in all international treaties the right of the foetus did not outweigh the rights of girls and women to have abortions in cases of rape, incest and fatal foetal abnormality.
She also said that in all countries in Europe apart from Ireland, San Marino, Malta and Andorra, abortion is permitted in those circumstances.
After that hearing in June Bernadette Smyth of the Precious Life group accused the commission of acting in an “undemocratic” way because it was “ignoring the views of the people and the politicians” in Northern Ireland.
The commission took its case under Articles 3, 8 and 14 of the ECHR.
The Department of Justice and the Attorney General Mr Larkin have up to six weeks if they wish to lodge an appeal.
