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Abortion: Courts have to do what assembly will not - The Irish News
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Abortion: Courts have to do what assembly will not

Mr Justice Horner embarked upon `the most exhaustive examination of the abortion law yet carried out by a judge'
Analysis by Bimpe Archer

ANY attempt to reform Northern Ireland's abortion legislation through the lawmakers in the assembly is doomed.

That's not just idle speculation or hyperbole. It is the very word used by First Minister Peter Robinson when assessing its chances.

All the main parties remain opposed to the extension of the 1967 Abortion Act to Northern Ireland, as do the main churches who still hold significant sway in public life.

Sarah Ewart's mother Jane Christie said the DUP leader "got it" during a "one on one" meeting with the family and their consultants explaining the realities of carrying a baby with a fatal foetal abnormality.

"He even referred to his own daughter, saying if she was in that situation he would want to see that she would get help," Mrs Christie said yesterday, expressing the family's shock and disappointment when his public statements veered away from this.

The Department of Justice asked that the judge "disregard" Mr Robinson's "doomed" remark when making his assessment, but Mr Justice Horner found it impossible to do so.

"There is every reason to accept as true, the comments of the First Minister that any legislative proposals for the termination of pregnancy regardless of the category are doomed," he said yesterday.

"...There has been no affidavit filed by the First Minister or on his behalf suggesting to the court that this did not accurately reflect the reality of political life in Northern Ireland."

And the judge believes "inaction" from the department makes the prospect of a change in law on pregnancies caused by sexual crime "even more gloomy".

Instead, Mr Justice Horner embarked upon what legal analysts have described as the most exhaustive examination of the abortion law yet to be carried out by a judge anywhere.

He was determined to end the moral fudge that has existed in Northern Ireland for decades - where those that can afford to may legally travel to England to have terminations, while those that can't risk a notional sentence of life in prison for both them and any medic who consents to treat them.

The Department of Justice records that 802 terminations in England and Wales in 2013 were carried out on women from Northern - five aged under 16 - 14.7 per cent of all abortions.

The Family Planning Association considers the annual number to be closer to 2,000.

Meanwhile, there were just 51 lawfully performed abortions in Northern Ireland in 2012/2013

"It was a landmark case in its significance in setting out the breadth of circumstance in which access to termination of pregnancy be made available," David Russell, deputy director of the Northern Ireland Human Rights Commission said.

His ruling that the north's abortion legislation breaches Article 8 of the European Convention on Human Rights by failing to provide an exception to the prohibition on abortion in cases of a fatal foetal abnormality or where the pregnancy is the result of sexual crime has been made with scalpel-like precision.

In the former case, a termination is specified "at any time during the pregnancy" - because the foetus is incapable of surviving independently - and in the latter it is specified "up to the date when the foetus is capable of existing independently of the mother".

After that point, notwithstanding the trauma to the victim of rape or incest, the foetus's right to life is recognised by the court and an abortion once again becomes illegal.

What may not immediately be obvious to everyone is that Mr Justice Horner's ruling has at a stroke made abortion available to every child under the age of 16, as any intercourse at that age constitutes `statutory rape'.

In 2010 and 2011, 19 children travelled to England and in 2012 that figure was 16.

Some in the legal profession believes this could be extended to what on the face of it is `consensual sex' in cases up to the age of 18 where an abuse of power is a factor in the intercourse which resulted in the pregnancy.

So what now for women who fall into these categories?

Mr Justice Horner will give direction on the case later this month and it is open to appeal. However, in the meantime doctors asked to carry out termination under these circumstances will be mindful that a high court judge has ruled that refusal is a breach of the women's human rights.


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