By Dylan O'Sullivan-
The Supreme Court dramatically said it would rule against Northern Ireland abortion laws if the claim was presented by a rape victim.
Its sensation statement came as Supreme Court judges dismissed a case brought by the Northern Ireland Human Rights Commission(NIHRC) to change the law on abortion. The justices hearing the case said that because of their decision on the standing of the NIHRC, the Supreme Court “has no jurisdiction” in the proceedings to make a declaration of incompatibility. Explaining why the commission did not have power to bring the case, Lord Mance said: “In summary, the present proceedings were not instituted by identifying any unlawful act or any actual or potential victim of it.”
The literal meaning of Lord Mance’s statement was that their decision had been made because the case had been brought by an organisation, and not an individual. The judges concluded that had the case had been brought by a woman who, for example, had been raped and was unable to terminate the resulting pregnancy, the judges would most likely have concluded that the legislation did violate her human rights. The law would likely have been overturned as a result.
The Northern Ireland Human Rights Commission( NIHR) told the court the present state of the law in Northern Ireland encourages the “inhuman and degrading” treatment of women, often causing “physical and mental torture”. With Northern Ireland being the only part of the UK that defies the 1967 Act allowing up to 24 weeks of pregnancy, its blanket laws prohibiting abortion in all circumstances are archaic and ridiculous. It had been hoped by abortion campaigners that the law would be overturned. However, the highest court in the land ruled that the matter was for the legislature and that they would not declare and incompatibility at this stage. The judges did specify that their decision had been made because the case had been brought by an organisation, and not an individual.
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The judges concluded that had the case had been brought by a woman who, for example, had been raped and was unable to terminate the resulting pregnancy, the judges would most likely have concluded that the legislation did violate her human rights. The law would likely have been overturned as a result, they said. However, judges are aware that such a case might eventually occur, so why they didn’t rule against the very restrictive laws is a matter of politics.
RECONSIDERATION
Deputy Supreme Court president Lord Mance said the present law “clearly needs radical reconsideration” and that the opinion of the court – while not legally binding – “cannot safely be ignored”. The deputy Supreme Court president Lord Mance said the present law “clearly needs radical reconsideration” and that the opinion of the court – while not legally binding – “cannot safely be ignored”. Lord Mance said in a lengthy written ruling: “I am, in short, satisfied that 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.
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“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 as well as the likelihood that a victim of the existing law would have standing to pursue similar proceedings to reach similar conclusions and to obtain a declaration of incompatibility in relation to the 1861 Act.”
The Supreme Court judges did specify that their decision had been made because the case had been brought by an organisation, and not an individual. The judges concluded that had the case had been brought by a woman who, for example, had been raped and was unable to terminate the resulting pregnancy, the judges would most likely have concluded that the legislation did violate her human rights. The law would likely have been overturned as a result.
In a lengthy written ruling, Lord Lance stated: “I am, in short, satisfied that 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.
He said that, where it is clear a foetus is suffering from a fatal abnormality, there is “no justification” in inflicting on the mother the “appalling prospect” of having to carry it to term.
BALANCE
The Supreme Court judge added: “Put simply, the balance cannot come down in favour of a law which imposes that experience on a woman.
“Quite apart from other considerations, the imposition of such a law fails to give any weight to the personal autonomy of a woman and her freedom to control her life.”
The judge’s ruling that the blanket ban was “disproportionate” in cases of rape and incest, added: “To require in every instance a girl or woman to carry to term a foetus which was the consequence of exploitative and abusive behaviour and which is utterly abhorrent to her could not, we concluded, be considered as having struck the right balance between her rights and those of society.
“Those responsible for ensuring the compatibility of Northern Ireland law with the Convention rights will no doubt recogniZe 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 as well as the likelihood that a victim of the existing law would have standing to pursue similar proceedings to reach similar conclusions and to obtain a declaration of incompatibility in relation to the 1861 Act.”
“Put simply, the balance cannot come down in favour of a law which imposes that experience on a woman.
“Quite apart from other considerations, the imposition of such a law fails to give any weight to the personal autonomy of a woman and her freedom to control her life.”
Judge Lance also said the blanket ban was “disproportionate” in cases of rape and incest, adding: “To require in every instance a girl or woman to carry to term a foetus which was the consequence of exploitative and abusive behaviour and which is utterly abhorrent to her could not, we concluded, be considered as having struck the right balance between her rights and those of society.”
The oddity of the Supreme Court ruling is appallingly scary. The request for a ruling against prohibitions on abortions where a pregnancy arises from rape or incest, or “involves a serious foetal abnormality” as unlawful was rejected by the judges. Judges who on the one hand admitted that the autonomy of women and their freedom to control their lives. The Stormont Executive’s senior legal adviser, Attorney General John Larkin QC, intervened in insisting that Northern Ireland’s criminal law on abortion is a matter for the “democratic judgment” of the legislature. The legislature, he said, “has struck the proportionate balance required for the protection of the rights of women and unborn children”. Predicting what will happen next is not difficult.
Either Westminster amends the law as a matter of urgency, or a rape victim or a mother with a terminally ill foetus appears at the Supreme or High Court to have another crack at changing the law with the Supreme Court will be obliged to respond to in accordance with their own vow to change the law in such circumstances. One thing that looks certain is that the law in Northern Ireland will change at some point in the future. We can trust abortion campaigners not to let go of this very important topic
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