Northern Ireland news

Northern Ireland abortion law 'inhuman and degrading', Supreme Court told

The Supreme Court in London is hearing a three-day appeal over the north's strict abortion laws
Cathy Gordon, Press Association

Northern Ireland's strict abortion law subjects women and girls to "inhuman and degrading" treatment, Britain's highest court has heard.

A panel of Supreme Court justices in London were also told that the current law - which makes it an offence for a woman to abort with a fatal foetal abnormality or where the pregnancy arises through rape or incest - discriminates against them on the grounds of sex.

The submissions were made on Tuesday by Nathalie Lieven QC at the beginning of a three-day appeal brought by the Northern Ireland Human Rights Commission (NIHRC).

Ms Lieven argued on behalf of the commission that the prohibitions also amounted to an "unjustified" breach of their personal right to autonomy.

She also read evidence from three women relating to their experiences of being unable to have an abortion in Northern Ireland, despite fatal foetal abnormalities.

Ms Lieven described their "trauma and humiliation" and said they were forced to go through "physical and mental torture".

The proceedings before a panel of seven justices, headed by Supreme Court president Lady Hale, follow earlier legal rulings in Northern Ireland on the controversial issue.

Unlike other parts of the UK, the 1967 Abortion Act does not extend to Northern Ireland.

Abortion is illegal except where a woman's life is at risk or there is a permanent or serious danger to her mental or physical health.

Anyone who unlawfully carries out an abortion could be jailed for life.

The commission argues that the current law's effect on women is incompatible with rights under the European Convention on Human Rights (ECHR).

The High Court in Belfast made a declaration in December 2015 that the criminal law was incompatible with Article 8 of the ECHR, the right to respect for private and family life, because of the absence of exceptions to the general prohibition on abortion in cases of fatal foetal abnormalities and pregnancies resulting from sexual offences.

But that decision was overturned in June this year by three of Northern Ireland's most senior judges.

The appeal judges said the law in Northern Ireland should be left to the Stormont assembly and not judges, saying that the complex moral and religious questions behind the issue should be determined by a legislature rather than a court.

The assembly voted in February last year against legalising abortion in cases of fatal foetal abnormality and rape or incest.

A fatal foetal abnormality means doctors believe an unborn child has a terminal condition and will die in the womb or shortly after birth.

The justices are being asked to rule on two issues - whether the current legislation is incompatible with Article 8 and other articles which provide protection from torture and inhuman or degrading treatment or punishment and from discrimination, including on the ground of sex; and whether the Northern Ireland Act 1998 entitles the NIHRC to bring the proceedings under the Human Rights Act 1998 to seek a declaration of incompatibility.

The Stormont Executive's senior legal adviser, Attorney General John Larkin QC, with the Justice Department, argue that the commission does not have legal power to bring the case and says it has failed to identify an unlawful act.

In written argument before the court, Ms Lieven said both the Attorney General and the Department for Justice "are at pains to suggest there is no jurisdiction" for the Supreme Court to consider the challenge, because of the commission's "lack of standing and a failure to identify an unlawful act".

She argued: "Neither suggestion is correct."

Referring to this year's ruling in the case by appeal judges, the QC said they had placed "considerable weight on the suggestion that it was inappropriate for the courts to intervene in an issue as sensitive as the law on termination of pregnancy, preferring instead to leave the matter to the legislative process".

She added: "But this is a process which has demonstrably failed to protect women's and girls' human rights."

The NIHRC's chief commissioner, Les Allamby, said in a statement: "This case has the opportunity to bring about a real change to the law on termination of pregnancy in Northern Ireland.

"The commission took legal action as we want women and girls in Northern Ireland to have the choice of accessing a termination of pregnancy locally in circumstances of serious malformation of the foetus, rape or incest, without getting a criminal record or facing going to prison."

He added that the case was of "great significance in the UK and internationally".

Ms Lieven said the current abortion law "criminalises" women who were in an "exceptionally vulnerable position".

The challenge related to whether the existing criminal law was lawful in three circumstances - where the pregnancy results from rape or incest or "where it involves a serious foetal abnormality".

Victims of serious sexual crime who have to carry a pregnancy to term were being forced to live with the consequences of that crime for the rest of their lives.

The QC said: "In the case of pregnancies involving a serious foetal abnormality they are carrying a foetus with a serious, and often fatal, abnormality to term, knowing that it may not survive at all, or for long - or that if it does survive it will be left with serious disabilities.

"In the case of a fatal foetal abnormality, they must carry to term a foetus that, by definition, cannot survive independently and may, by the time of delivery, be dead."

She argued: "The potential to travel elsewhere in the UK for an abortion cannot be treated as a 'get out clause' for the law in Northern Ireland."

As well as hearing argument from the Attorney General during the proceedings, the justices will have submissions from a number of organisations.

They include seven of the UK's leading reproductive rights organisations, Humanists UK, Bishops of the Roman Catholic Dioceses in Northern Ireland, and the Society for the Protection of Unborn Children.

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