The Attorney General for Northern Ireland and the Department of Justice (appellants) v The Northern Ireland Human Rights Commission (respondent)  NICA 42 (29 June 2017) – read judgment
Although the accompanying image is not in any way intended to suggest that Northern Ireland’s law on abortion parallels the situation obtaining in Margaret Atwood’s fictional Gilead, the failure of the legislature and the courts to overhaul the criminal law to allow women access to termination is a bleak reflection of the times. The hopes that were raised by high court rulings from 2015 and 2016 that existing abortion laws breached a woman’s right to a private life under Article 8 have now been dashed.
Let me start with a much quoted proposition derived from Strasbourg law.
when a woman is pregnant her private life becomes closely connected with the developing foetus and her right to respect for her private life must be weighed against other competing rights and freedoms, including those of the unborn child.
Really? Does that mean a woman loses her autonomy, the minute she conceives? Does she become public property, subject to the morals and wishes of the majority? Apparently so, particularly when one reads the opinion of Weatherup LJ:
the restriction on termination of pregnancies pursues the legitimate aim of the protection of morals reflecting the views of the majority of the members of the last [Northern Ireland] Assembly on the protection of the unborn child.
Just to reiterate the somewhat starkly opposing positions in England and Northern Ireland: in England and Wales, an abortion may be performed lawfully under the Abortion Act 1967 where the doctor is satisfied that the risk to the health of the mother is greater if she proceeds with the pregnancy than if she were to have a termination. The Abortion Act 1967 does not extend to Northern Ireland: abortion is only allowed there if a woman’s life is at risk, or if there is a permanent risk to her mental or physical health. In anything other than these extreme circumstances a termination cannot be performed either within the National Health Service or privately. Until very recently, the law surrounding the circumstances when a woman can lawfully seek a termination of pregnancy in Northern Ireland has been obscure and uncertain. In 2013 The Northern Ireland Human Rights Commission took judicial review proceedings, claiming that the grounds for abortion should be extended.
The Commission won a favourable ruling in the High Court in Belfast. But this “historic” success proved to be short-lived. As Laura Profumo noted in her news round up at the time, even after the Commission’s wide ranging public consultation and court victory there remained “strong opposition” within the Assembly against liberalising the abortion laws. This appeal the Department of Justice has vindicated that opposition.
The thrust of the Commission’s legal campaign was to oblige the Department of Justice to bring forward legislation to allow for unlawful termination of pregnancy in circumstances of serious malformation of the foetus, rape or incest. They sought a declaration pursuant to section 6 and section 4 of the Human Rights Act 1998, that the offending Northern Irish criminal provisions were incompatible with Articles 3, 8 and 14 of the ECHR as they relate to access to termination of pregnancy services for women in cases of serious malformation of the foetus or pregnancy as a result of rape or incest. They also sought a declaration that, notwithstanding the criminal law relating to abortion, women in Northern Ireland may lawfully access termination of pregnancy services within that jurisdiction in cases of serious malformation of the foetus or rape or incest. The Minister, said the Commission, had acted incompatibly with the rights of those women by refusing to amend the current legislative provisions.
The issues before the Appeal Court
The challenge to the right of the Commission to take this case (its “standing”) did not get very far. Whilst the Strasbourg Court requires an applicant to be a “victim” of a breach of human rights, it recognises representative actions and the Appeal Court acknowledged in this case that the Commission had been set up for the very purpose of instituting proceedings in its own right and when doing so it could legitimately rely upon the Convention.
In these circumstances, the very nature of the women’s difficulty is hedged about with secrecy and the unwillingness of “victims” to come forward is understandable. As the respondent Commission argued, women who faced reproductive healthcare choices in circumstances of serious malformation of the foetus and rape or incest cannot be counted in definitive numbers. But one example advanced in evidence by the Northern Irish branch of Marie Stopes puts the case very starkly:
Client A had been enjoying a planned first pregnancy. She attended hospital for her 20+ weeks scan. She was advised that the foetus was not compatible with life and if born would not survive. The diagnosis was anencephaly. [Ancelphaley is defined as “the absence of a major portion of the brain, skull, and scalp that occurs during embryonic development”] She and her partner decided they wished to terminate the pregnancy but she was refused the procedure by her obstetrician because without clear guidance he could not be certain that it could lawfully be carried out.
MSNI made the necessary arrangements for Client A and her partner to travel outside of Northern Ireland where she underwent a termination of pregnancy procedure.
Other clients of MSNI had suffered rape, incest and other forms of sexual abuse including paedophilia. Termination of the resulting pregnancies was not available in Northern Ireland because of the uncertainty of the legality of the procedure. In the case of the woman carrying a severely disabled child, the recent concession for NI women seeking free abortions in England does not fully address the problem:
If they carried the baby it meant facing the possibility that it would die before it was born but would nevertheless be carried until it was picked up on a scan and induced. Otherwise it meant facing the possibility of a long and dangerous delivery knowing that the child would not survive. Going to England meant moving outside the security and familiarity of her own health care system. In light of her experience and the risk she faces of a similar pregnancy she has campaigned with her mother for a change in the law to permit a medical termination in Northern Ireland for a fatal foetal abnormality such as she suffered.
The facts of the Strasbourg case A, B and C v Ireland  53 EHRR 13 , puts the lack of access to abortion into stark relief (in Ireland the rules are even more restrictive). The applicant suffered from cancer, and when her disease went into remission and she became pregnant unintentionally. She had been unaware of this when she underwent a series of tests for cancer which were contraindicated during pregnancy. She consulted her GP as well as several medical consultants and alleged that as a result of the chilling effect of the Irish legal framework she received insufficient information as to the impact of the pregnancy on her health and life and the consequences of her prior tests for cancer on the well-being of the foetus. The majority in the Strasbourg Court concluded that
because of the profound moral views of the Irish people as to the nature of life and the consequent protection to be accorded to the right to life of the unborn a fair balance had been struck in the domestic legislation.
The very strong dissent in that case is worth repeating here. The minority judges considered that the majority had asked the wrong question. The issue was not the difficult question of when life begins. The issue was the balance to be struck between the right to life of the foetus and the right to life of the mother including her right to personal autonomy and development.
It was the superior right of the mother that was the basis for the undeniably strong consensus among European states. The minority went on to explain that the rights of the mother were the rights of a person already participating in an active manner in social interaction whereas the rights of the foetus within the mother’s body before birth had not been definitively determined and participation in social interaction had not even started. The rights within the ECHR were mainly designed to protect individuals against state acts or omissions while those individuals participated actively in the normal everyday life of a democratic society. That was the basis for the European consensus. The minority also considered that the severity of the criminal sanctions in this “rather archaic” law was striking.
But the majority view won the day, and was much relied upon in the instant case. The NI Appeal Court also considered the Strasbourg case of Vo v France (2005) 40 EHRR 12. Here the applicant had suffered injury to her amniotic sac which in turn necessitated the termination of her pregnancy. The foetus, a baby girl, was between 20 and 24 weeks at termination. The doctor was charged with causing unintentional injury but was acquitted on the ground that the foetus was not, at that stage, a human person. The Strasbourg Court upheld this conclusion; it was within every state’s discretion to decide whether or not a foetus, however healthy, was a “person” with the “right to life” for the purposes of Art 2.
But Article 2 was of no avail to the women represented by the Commission in this case, since the case did not turn on prosecution of doctors. Not did the case law on Article 3 help the respondents; failure to provide access to termination of pregnancy, even in the case of serious psychiatric harm or deformity of the foetus has been repeatedly held not to reach the high threshold of treatment prohibited by that Article.
Article 8 was the most relevant provision in the Convention. Although A, B and C v Ireland did not address the circumstances that were the subject of this appeal, the case could be regarded as authority for the proposition that Article 8 gave protection by way of a right to access to abortion for women significantly affected by health or well-being issues. But Morgan LCJ concluded that
this view did not displace the overriding principle that each jurisdiction has a wide margin of appreciation in determining such sensitive legal and moral issues and that A, B and C v Ireland could not be interpreted as requiring such protection for women.
Ultimately this case turned upon institutional competence. The NI Appeal Court did not find it within its remit to interfere on a matter that is at the political heart of Stormont/Westminster democracy. They took to heart Lord Bingham’s warning in R (Countryside Alliance) v Attorney General  AC 719 at paragraph 
that the democratic process is liable to be subverted if, on a question of moral and political judgement, opponents of the Act achieved through the courts what they could not achieve in Parliament.
In these circumstances, the Court of Appeal did not feel it was for the courts to intervene. Altering the abortion criteria “would require consultation and engagement in particular with medical practitioners and the police where one is dealing with distressed victims of rape”. According to Morgan LCJ, making a declaration in the terms sought by the Commission “would effectively amount to judicial legislation.”
The unwillingness of the courts and the legislature to address this issue very much parallels the stalemate reached in the UK over the right to die with dignity. Indeed, Morgan LCJ acknowledged this very analogy at the end of his judgment, when he reflects that there was a “pressing need” to ensure that there was a practical and effective method of implementation of the rights of women in the position of Sarah Ewart. He goes on to say that if the executive and legislature are both unwilling or unable to address this pressing need then maybe the judges are in a better position to grasp this nettle. As Lord Neuberger suggested at paragraph  of the right to die case of Nicklinson v Ministry of Justice  UKSC 68.
Quite apart from this, there is force in the point that difficult or unpopular decisions which need to be taken, are on some occasions more easily grasped by judges than by the legislature. Although judges are not directly accountable to the electorate, there are occasions when their relative freedom from pressures of the moment enables them to take a more detached view.
Having acknowledged this, it seems a pity that the Court failed to take the opportunity to step up to the wire. The NI Assembly has failed to attend to this matter in previous decades, so there is little reason to hope that they will do so now. Free access to abortion in England does not answer this “pressing need”.
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