High Court: Differential standards on abortion time-limits do not breach the human rights of disabled persons
25 October 2021
In Crowter & Ors, R (On the Application Of) v Secretary of State for Health And Social Care  EWHC 2536 (Admin), the High Court considered the lawfulness of the provision in the Abortion Act 1967 which permits termination of a foetus after 24 weeks where there is a substantial risk that, if born, a child would be “seriously handicapped”.
The Claimants sought a declaration of incompatibility under section 4 of the Human Rights Act in respect of section 1(1)(d) of the 1967 Act. It was their contention that this section is incompatible with Articles 2, 3, 8 and 14 of the ECHR. The Court dismissed the claim in its entirety.
The First Claimant was a 25-year-old woman with Down’s syndrome. The Second Claimant was the mother of the Third Claimant. At 35 weeks’ gestation, the Third Claimant was identified as being very likely to have Down’s syndrome and the Second Claimant’s evidence was that during her pregnancy that she had been made to feel that a life with Down’s syndrome was of no value. The Third Claimant is now two years old has met all his developmental milestones.
The Legal Framework
As is now in force, s.1(1) of the 1967 Act provides that there may be a medical termination of a pregnancy if two medical practitioners are of the opinion that, inter alia, “there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped” (under subsection (d)).
Whereas Parliament has set a general upper time limit for abortions at 24 weeks, this does not apply to abortions on grounds of foetal abnormality.
Whilst there is guidance from public medical authorities on the various factors influencing the severity of a “handicap”, the guidance does not offer a legal definition of “substantial risk” or “serious handicap”.
Article 2 (and Article 3)
The High Court observed that Article 2 is silent as to the temporal limitations of the right to life and it does not define the “everyone” whose life is protected. In Vo v France , the ECtHR declined to hold that the unborn foetus is directly protected under Article 2 because the unborn person is not regarded as a “person” [para 80 of the ECtHR judgment].
The Court further held that if the unborn do have a right to life, it is “implicitly limited by the mother’s rights and interests” . Nevertheless, given the issue of abortion involves balancing “conflicting” rights and freedoms and because this exercise is informed by a diversity of legal cultures and national standards, the ECtHR has variously held that the issue of when the right to life begins comes within the margin of appreciation enjoyed by Member States.
The Claimants argued that the provision was incompatible with Article 2 because “it places in danger the life of a disabled unborn child at a time when it is both viable and sentient, by permitting abortion in circumstances where, and at a time at which, it would not be permitted in the case of a non-disabled child” , and that “the domestic law recognises the existence of human life worthy of protection equivalent to the law of murder from the point of viability” .
The High Court rejected this submission for two main reasons. First, it was held that “the European Court has never decided that a foetus, even one post-viability, is the bearer of Convention rights.”  Secondly, it was held that whilst domestic legislation and the courts have recognised that there may be circumstances in which the foetus has interests which the State is entitled to protect, this “does not lead to the proposition that it enjoys rights under Article 2.”  In this regard, “the fact that the domestic law of murder does not protect the life of the unborn child is itself telling.” 
As to the “Ullah” principle, that the domestic courts should normally follow the clear and constant jurisprudence of the Strasbourg Court, the High Court held that the Claimants’ submission would require the Court to go “well-beyond” an incremental development in the law .
For similar reasons, the High Court dismissed the submission that the serious risk of being exposed to death before birth at 36 weeks constituted a violation of the Article 3 rights of a disabled unborn child.
The Claimants argued that unlimited abortion on grounds of foetal disability interfered with their Article 8 rights because such a policy stigmatises disabled persons and is disrespectful of their rights to identity and personal development, placing reliance on the UN Convention on the Rights of Persons with Disabilities 2006 (Article 5 of which emphasises equality and non-discrimination).
Dismissing the Claimants’ submissions, the High Court held that the provision does not interfere with the right to respect for private and family life of any of the Claimants, as it “does not perpetuate and reinforce negative cultural stereotypes to the detriment of people with disabilities” and it had not been shown that “there is any causal connection between this legislative provision, focused as it is on the rights of pregnant women and their medical treatment, and any discrimination that continues to be suffered by those with Down’s syndrome despite the extensive legislative provisions aimed at preventing such discrimination, in particular in the Equality Act 2010.” 
The Court nevertheless went on to consider whether the proposed was in accordance with the law and proportionate or justified under Article 8(2).
It was held the operation of the provision was in accordance with the law. Despite the broadness of “substantial risk” and “serious handicap” and the absence of any guidance on the application of these terms, the criminal law in this context remained enforceable, as per the rules on criminal procedure.
As to proportionality, it was held that: (1) Parliament had the legitimate aim of protecting the rights of women and potentially other members of their families; (2) Even though section 1(1)(d) does not mention any consideration of the rights of a pregnant woman or of her mental and physical health, there was “clearly” a rational connection between the legitimate aim and the measure adopted; and (3) Regarding whether a less intrusive measure could have been used and a fair balance had been reached, the Court stated that “this is a field where it is particularly important to give Parliament a wide margin of judgement” , emphasising that Parliament has given a choice to women, that despite scientific developments there remained conditions that were only be identified late in a pregnancy, and that Parliament had previously considered whether it would be feasible or desirable to set out an exhaustive list of foetal abnormalities rather than having the broader terminology used in section 1(1)(d).
Further, despite the evidence placed before the Court, it was stated that there are “others whose lives will be affected by any change to the 1967 Act [who] have no opportunity to take part in these proceedings.”  The necessary limitations to the Court’s field of inquiry meant this was an issue better debated in Parliament.
Whilst the High Court had concluded that the present matter did not fall within the “ambit” of Articles 2, 3 and 8, in case it was wrong about that, it addressed the Claimants’ argument under Article 14 that section 1(1)(d) of the 1967 Act discriminates against disabled persons.
As was held by the ECtHR in the case of Carson v UK , when assessing whether a difference in treatment is discriminatory, the contracting state enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. Reflecting upon this, the High Court surmised that the balance Parliament has to strike in this context is “between the interests of the foetus and the rights of women” .
Regarding the intensity of review to apply when conducting this balancing test, the Court acknowledged that the Claimants were entitled to observe that disability is potentially a “suspect” ground and therefore “very weighty reasons” would normally be required to justify a difference in treatment on the grounds of disability. Nevertheless, in R (SC) v Secretary of State for Work and Pensions  UKSC 26, Lord Reed said at para  that a much less intensive review may be applied even in relation to some so-called “suspect” grounds where “other factors are present which render a strict approach inappropriate”.
In the High Court’s judgment, these considerations “are particularly apt in the present context, where a very difficult balance has to be struck by Parliament between the interests of the foetus and the rights of women. The judgement which Parliament has reached, in enacting section 1(1)(d) of the 1967 Act, falls within the margin afforded to Parliament.” 
This judgment reflects a High Court hamstrung by its procedural and constitutional limitations. From its frequent citation of the “Ullah” principle to its (justified) deference to Parliament’s democratic legitimacy, the Court is unambiguous in its reluctance to even query, never mind modify, the existing law. Without a legislative move to define the contours of a “serious handicap”, judicial intervention to protect from abortion those foetuses with Down’s Syndrome is not likely to be forthcoming.
The other salient difficulty faced by the Claimants was their inability to cross what might be termed the “personhood threshold”. Without an authority from the European Court stating that a foetus might enjoy Convention rights in certain circumstances (such as post-viability), there appears to be no prospect for the English courts to fill that gap. Crucially, in absence of that foundation, the rights of the unborn remain in what David Dyzenhaus would call a “legal black hole”.
Somewhat disappointing, however, was the brevity of the Court’s ruling on the standard of review required when assessing the claim under Article 14. Notwithstanding the reference to Lord Reed’s ruling in R (SC) v SSWP, it would have been helpful if the Court elaborated on which “other factors” justified not applying the ordinary standard of review for a claim of disability discrimination. In the view of this author, it is not intuitively clear why a requirement for “very weighty reasons” is inconsistent with an assessment of the difficult balance to be struck between the rights of a mother and a foetus. Put alternatively, the level of deference afforded to national authorities surely ought to vary between a context of social security and one in which the lives of disabled persons are at stake.
Sapan Maini-Thompson is training to become a barrister specialising in criminal, public and human rights law. He tweets @SapanMaini