International human rights can help reverse yet another heavy blow on sexual and reproductive health

25 June 2017 by Guest Contributor

Koldo Casla  of the Policy, Research and Training Manager of Just Fair @JustFairUK, an organisation that monitors and advocates economic and social rights in the UK

Women’s sexual and reproductive rights are not safe and accessible in all corners of the United Kingdom: see Rosalind English’s post on the Northern Irish situation here and here.

Update: the government has announced its intention to make funding available for women travelling from Northern Ireland to have free termination services on the NHS in England (29 June 2017).

Abortion is still a crime in Northern Ireland. Women who choose to exercise their sexual and reproductive rights have to travel to mainland Britain, but they have to face costs (about £900 in the recent case discussed by Rosalind English) that would not apply if they lived in England, Wales or Scotland.

By a majority of 3 to 2, the Supreme Court ruled that, while this situation does in principle concern the right to enjoy a private and family life without discrimination (Articles 8 and 14 of the European Convention on Human Rights), the difference in treatment is justified because the decision on this matter falls under the powers of the devolved administration of Northern Ireland (paragraph 20 of the Judgment). And therefore the human rights of women living in Northern Ireland are not being breached.

Well, international human rights bodies beg to differ.

A year ago, the UN Committee on Economic, Social and Cultural Rights recommended the UK to

amend the legislation on termination of pregnancy in Northern Ireland to make it compatible with other fundamental rights, such as women’s rights to health, life and dignity

Last month, five countries put their voices together to reassert this particular recommendation in the Universal Periodic Review of the UK’s human rights performance.

The World Health Organisation, the European Court of Human Rights, the European Committee of Social Rights, the Human Rights Commissioner of the Council of Europe, the UN Committee on the Rights of the Child, the UN Committee on the Elimination of Discrimination Against Women, and the list goes on, have all made perfectly clear that international human rights treaties voluntarily ratified by the United Kingdom protect women’s sexual and reproductive rights, including the right to seek a safe and legal abortion.

Last year, for example, the UN Human Rights Committee did establish when responding to an individual complaint that the criminalisation of abortion in the Republic of Ireland constitutes a violation of women’s rights. The woman that brought the case to the UN travelled from Dublin to Liverpool to get an abortion, for which she paid €3,000, including the round trip cost. A few weeks ago, two thirds of the Irish Citizens’ Assembly took the UN Committee’s advice and recommended the introduction of unrestricted access to abortion.

As observed by Lady Hale in her dissenting vote in the Northern Irish case (paragraph 93), our legal system enshrines the fundamental values of

autonomy and equality, both of which are aspects of an even more fundamental value, which is respect for human dignity. The right of pregnant women to exercise autonomy in relation to treatment and care has been hard won but it has been won.

Thankfully, the Supreme Court’s ruling is not the finish line.

Given the prominent role that the DUP is called on to play in British politics, the people of Northern Ireland and of the UK in its entirety will need the support of international human rights law and mechanisms now more than ever.

The UK has adopted a restrictive approach (compared with other European countries) to the jurisdiction of international human rights bodies. However, we have some tools at hand, and audacious strategic litigants will take this case or similar ones to the European Court of Human Rights or to the UN Committee on the Elimination of Discrimination Against Women.

While we should not jump to conclusions, there are strong reasons to suspect that both the Court and the Committee would find the UK in violation of international human rights law. In such case, domestic legislation and policy –whatever the competent authority, Westminster, Whitehall or Stormont– would have to be adjusted accordingly.

Editor’s note: The appellant in R (o.t.a A and B) v. Department of Health [2017] UKSC 41 has announced her intention to take the case to the European Court of Human Rights. A podcast on the subject, from the 1 Crown Office Row series Lawpod UK, will be available shortly.

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Related posts:

• Northern Ireland Abortion Refugees: Supreme Court
• Northern Ireland Abortion refugees: Further Thoughts
• Analysis: early medical abortion cannot take place at home
• Abortion, Mental incapacity and prior intentions: Court of Protection clarifies the law