U.K. Court Dismisses Challenge to Northern Ireland Abortion Law
Posted June 7, 2018 11:53 a.m. EDT
LONDON — Britain’s Supreme Court on Thursday struck down an attempt to overturn Northern Ireland’s restrictive laws on abortion over a legal technicality, barely two weeks after Ireland voted in a landslide to do away with similar rules.
But in an important caveat, Justice Brenda M. Hale, president of the court, said that a majority of the justices “are of the firm and clear opinion that the current law is incompatible with” the European Convention on Human Rights, to which Britain is a party.
The court’s conclusions are not binding. But Justice Brian F. Kerr said that they “must be worthy of close consideration by those in whose power it lies to decide whether the law should be altered.”
Pressure has been mounting on Northern Ireland to change its laws, which ban abortion in nearly all cases, since the Irish referendum cleared the way for the repeal of a constitutional amendment that imposed similar restrictions. But the National Assembly in Belfast has been suspended for more than a year in a sectarian wrangle, and the Northern Ireland Human Rights Commission, which brought forward the legal challenge, has said it is now up to the British Parliament in London to legislate changes.
“This is a victory, a historic landmark for women’s rights in Northern Ireland,” David Russell, chief executive of the rights group, said, adding that the Supreme Court’s dismissal on technical grounds did not diminish its significance.
“It has been clear that Northern Ireland’s laws are incompatible with human rights and there needs to be a political solution,” he said.
By a 4-3 vote, the court’s justices concluded that they could not rule in the case because the Northern Ireland Human Rights Commission had not had standing to file it. Justice Jonathan H. Mance explained the majority’s view that a legitimate challenge to the law could be made only by a person it had harmed.
“The proceedings were brought in the abstract, without reference to any specific act or individual,” he said.
The Northern Ireland Human Rights Commission said it had challenged the law “in order prevent any woman or girl from having to face the burden of doing so.”
The court’s statements seemed nonetheless to invite a new challenge to the law, and indicated that it could be successful.
Five of the seven justices in the Supreme Court said they had concluded that Northern Ireland’s abortion law violated the European convention by not allowing abortion in cases of fatal fetal abnormalities. The other two said they could not reach a conclusion on the matter.
Four of the seven justices said the law violated the European convention by not allowing abortion in cases of rape and incest.
Ireland was long seen as having some of the most restrictive abortion laws in the world — at least until the May 25 referendum. But Northern Ireland regulations permit the termination of a pregnancy only if a woman’s life is in danger. There are no other exceptions — not rape, not incest not fatal fetal abnormalities — and those who violate the law could, in theory, be given a life sentence.
Britain legalized abortion in 1967, but that measure does not extend to Northern Ireland because of the ambiguous relationship between London and the so-called devolved administrations in Northern Ireland, Scotland and Wales, which exercise some individual powers but remain part of the unitary state of the United Kingdom.
But last year, after campaigning by the Labour Party, Westminster made a concession: It announced that the National Health Service would pay for abortions for Northern Irish women outside Northern Ireland. Currently, women who travel to England for the procedure — as about three do every day — have to pay privately for treatment.
The issue is politically problematic for Prime Minister Theresa May, whose Conservative Party is just short of a majority of seats in Parliament. The Conservatives, who generally support abortion rights, are able to govern only with support from Northern Ireland’s socially conservative Democratic Unionist Party, whose leaders are on record as saying the North “should not be bullied into accepting abortion on demand.”
But she is feeling pressure. A Labour lawmaker, Stella Creasy, who called an emergency debate on the matter Wednesday, wants to repeal parts of the 1861 Offenses Against the Person Act, which criminalized abortion in most cases but was lifted for women in England, Scotland and Wales in 1967. During the debate, the equalities minister, Penny Mordaunt, told Northern Ireland’s leaders to get moving on decriminalizing abortion, adding in a Twitter post, “if you don’t, we will.”
The Northern Ireland secretary, Karen Bradley, said she supported liberalization, though she argued that the matter “should be decided by the people of Northern Ireland.” Eleanor Crossey Malone, an organizer of ROSA, an abortion rights group, said that she was disappointed that the British court had not “intervened” to improve women’s rights in Northern Ireland. “We’re going to have to build a movement,” she said.
“We’re going to have to fight regardless, and we can’t wait” for Northern Ireland’s executive assembly to restart, she said. “We believe that if the people of Northern Ireland were making the decision, we would not be in this situation right now.”
In research on attitudes toward abortion conducted last year by Ulster University in Northern Ireland, an overwhelming majority of respondents said they supported legalizing abortion in cases of rape, incest or if a baby would not survive in the womb or shortly after birth.
Still, 60 percent of those surveyed said that abortion should be illegal if a woman became pregnant but did not want to continue with the pregnancy.