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Supreme Court: Northern Ireland abortion law is in breach of human rights: it is ‘untenable’, ‘disproportionate’, and needs ‘radical reconsideration’

The Supreme Court, London. Photo: Garry Knight.

The Supreme Court has today concluded that Northern Ireland’s laws that ban abortion in almost all circumstances are incompatible with UK human rights law. Humanists UK, the First Intervener in the case, has welcomed the decision, and called on the UK Government to act as a matter of urgency to amend the law and protect the human rights of women across the UK.

Welcoming the ruling, Humanists UK Chief Executive Andrew Copson commented, ‘Today’s ruling sends a very strong, clear message to the UK Government. It cannot wait for the Northern Ireland Assembly to reconvene and potentially act – it must now act itself. In our view, Northern Ireland’s near-total ban on abortion amounts to cruel and degrading treatment of women. Today the Supreme Court has declared that it breaches women’s right to bodily autonomy and must be brought to an end.’

About the judgment

In a 371 paragraph ruling, the Supreme Court has found that abortion law in Northern Ireland is incompatible with UK human rights law for women in certain groups.

The case focused on whether abortion should be legal in the cases of women with pregnancies where the foetus cannot survive birth, and women whose pregnancies arise from rape or incest. Deputy President of the Court Lord Mance encapsulated the view of the majority when he wrote, ‘[T]he need for amendment is evident… the present legislative position in Northern Ireland is untenable and intrinsically disproportionate in excluding from any possibility of abortion pregnancies involving fatal foetal abnormality or due to rape or incest… the present law clearly needs radical reconsideration. Those responsible for ensuring the compatibility of Northern Ireland law with the Convention rights will no doubt recognise and take account of these conclusions, at as early a time as possible, by considering whether and how to amend the law, in the light of the ongoing suffering being caused by it.’

By a majority of 5 – 2 the Court held that the current law is incompatible with Article 8 of the Convention (Right to respect for private and family life), in respect of women with pregnancies with a fatal foetal abnormality. By a majority of 4 – 3 the Court also held that the current law is incompatible with Article 8 in respect of women whose pregnancies arose from rape or incest. Two judges went even further and held that the regime was also incompatible with Article 3 (Prohibition of torture, inhuman or degrading treatment) in these cases.

Although the Court stopped short of making a formal declaration that Northern Ireland law is incompatible with human rights, because of a technicality about the standing of the NIHRC to bring the case, it chose to make plain that Northern Ireland law must be amended, through its ‘positive conclusion of incompatibility’. President of the Court Lady Hale found that, even without a formal declaration, the judgment cannot be ‘safely ignored’.

Even those judges in the minority who did not find incompatibility nonetheless still recognised the undesirable situation in which women in Northern Ireland can find themselves and acknowledged the need for legislative reform: ‘there is every reason to fear that violations of [human] rights will occur, if the arrangements in place in Northern Ireland remain as they are.’

The judgment follows on from the UN Committee on the Elimination of Discrimination against Women (CEDAW) finding in February that the current restrictions on accessing abortion services in Northern Ireland constitute ‘grave’ and ‘systemic’ violations of women’s rights.

Human rights issues are not a devolved matter and they are thus a concern for the UK Government, not just the Northern Ireland Assembly, and this underlines the need for the UK Government to now act.

Janet Farrell, solicitor at Bhatt Murphy representing Humanists UK, commented, ‘This landmark case from the UK’s most senior court confirms what Northern Ireland women know only too well – that the current law on abortion in Northern Ireland simply does not afford women the dignity or personal autonomy demanded by human rights law. As Lord Mance put it the present law treats the pregnant woman as a “vehicle” who must continue her pregnancy “whatever her circumstances and whatever her wishes”. It is up to lawmakers now to review and radically reconsider the law as the Supreme Court expects and the women of Northern Ireland deserve.’

About Humanists UK’s intervention

Humanists UK provided written legal submissions, gave oral submissions to the Court, and also provided evidence from three eminent philosophers and Humanists UK patrons: Professor AC Grayling, Professor of Philosophy and Master of the New College of the Humanities; Professor John Harris, Professor Emeritus of Bioethics at the University of Manchester; and Professor Simon Blackburn, retired Professor of Philosophy at the University of Cambridge. Their evidence concerns the philosophical concepts of autonomy, choice, dignity, and suffering, the absence of a compelling moral case for the almost total ban on abortion in Northern Ireland, and the absence of exemptions in the three serious categories highlighted by the case. The evidence provided builds on Humanists UK’s unique interdisciplinary expertise, at the intersection of medical ethics, moral philosophy and law.

Humanists UK is represented by solicitor Janet Farrell (Bhatt Murphy) and barristers Caoilfhionn Gallagher QC, Fiona Murphy and Mary-Rachel McCabe (Doughty Street Chambers).

Caoilfhionn’s oral submissions are available for viewing on the Supreme Court website (from 1 hr 45 mins). In her oral submissions, she focused, amongst other things, on the lack of an evidential basis for the moral case against abortion in these circumstances, and the fact that the foetus is not recognised in law as a rights-holder.

Humanists UK has long campaigned in defence of women’s reproductive rights and has intervened in other cases concerning Northern Ireland’s restrictive abortion laws. Its policies and approach to abortion are informed by its ethical position which supports a woman’s right to dignity and personal autonomy and accordingly to access a safe and lawful abortion with appropriate secular counselling and after-care should she choose to do so. It has successfully campaigned to oppose changes to the law in England and Wales that seek to restrict access to abortion. It is a member of the Voice for Choice coalition, the We Trust Women campaign, and the Back Off campaign. Its section Northern Ireland Humanists is a member of the Trust Women coalition, coordinated by Alliance for Choice.

In recent months it has been campaigning with Stella Creasy MP and groups such as the Family Planning Association, Amnesty International, BPAS, London-Irish Abortion Rights Campaign, and Alliance for Choice for repeal of sections 58 and 59 of the Offences Against the Persons Act 1861, in order to decriminalise abortion for women in Northern Ireland, as well as England and Wales.

Notes

For further comment or information, please contact Humanists UK Director of Public Affairs and Policy Richy Thompson on richy@humanism.org.uk or 0781 55 89 636, or Northern Ireland Humanists Coordinator Boyd Sleator on boyd.sleator@nihumanists.org or on 07918 975 795.

Read more about Humanists UK’s campaigns work on abortion: https://humanism.org.uk/campaigns/public-ethical-issues/sexual-and-reproductive-rights/

At Humanists UK, we advance free thinking and promote humanism to create a tolerant society where rational thinking and kindness prevail. Our work brings non-religious people together to develop their own views, helping people be happier and more fulfilled in the one life we have. Through our ceremonies, education services, and community and campaigning work, we strive to create a fair and equal society for all.

Northern Ireland Humanists is a part of Humanists UK, working with the Humanist Association of Ireland.

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