Will the abortion ruling make any difference?

In a landmark ruling that surprised many observers, Judge Mark Horner found that banning abortions of foetuses with fatal abnormalities, or that were conceived as a result of sexual crime, is incompatible with the European Convention on Human Rights

One hugely significant aspect of his judgement is in an area that the European Court of Human Rights has shied away from: the critical issue of when human life begins. Its view is that that is a matter for each member state to decide upon.

In the Republic of Ireland, for example, that moment is deemed to be at conception whilst in England and Wales a foetus is not a legal person until it is born and has a separate existence from its mother.

Mr Justice Horner held that the common law position in Northern Ireland is the same as in England and Wales, and so therefore the foetus “does not have a right to life under Article 2 of the Convention.” However pre-natal life is protected under specific statutes here.

This is important because in countries which deem human life to begin at conception the Convention will recognise the laws that flow from that and the other Convention Articles do not come into play. 

As this is not the case in Northern Ireland the judge was able to rule that Article 8 of the Convention which protects the right for private and family life had been breached.

The judge went on to quote Section 6(2) of the Northern Ireland Act 1998 (“the 1998 Act”), which followed the Good Friday Agreement, which made it clear that it was outside the legislative competence of the Assembly to pass any provisions which were “incompatible with any of the Convention Rights”.  

Put in plain and simple language this means that the Assembly has no right to pass laws that ban abortion in the case of sex crimes and fatal foetal abnormality and presumably therefore any such laws are not valid and unenforceable through the courts.

So where does this leave women who are victims of sex crimes or else are carrying foetuses with fatal abnormalities?

Under the present legislation termination of such pregnancies is a serious crime which carries a maximum penalty of life imprisonment. There is a similar penalty for anyone who assists a termination or encourages one. Also anyone who knows or believes an abortion has taken place must pass that information on to authorities or also face prosecution.

This covers the mother, doctors, nurses and anyone who becomes aware that a termination has taken place with potentially draconian punishments.

To ensure that they are acting within the law clinical staff require guidelines from the Department of Health which define what they may or may not do in order to ensure that they are not committing a criminal offence.

There have been no such guidelines for many years. Yet within a few hours of the decision Health Minister Simon Hamilton issued new guidelines to his executive colleagues to clarify the law. The document was subsequently leaked to the BBC

It made no reference to victims of sex crimes and advises that fatal foetal abnormality alone is not grounds for abortion.

The guidelines have yet to be issues to clinicians who are currently working in a void.

If and when they are what should clinicians do if asked for an abortion?

As the law stands they would be liable to prosecution as would the mother and any other staff involved. This is a scenario Mr Justice Horner anticipated. In his judgement he said, according to the official record “there is a strong argument that any decision to prosecute in such cases would be an abuse of the law given the court’s conclusion that the law is disproportionate.   He noted, however, that no party to the application made the case that it was possible to read the legislation in such a way nor was any argument addressed to the court about whether prosecution in such circumstances would be an abuse of the law.  Given that the court did not hear the parties on these issues, Mr Justice Horner said it was only proper that he gave them a further opportunity to make submissions before concluding his view. “

So it is not clear what might happen if there were to be a prosecution. Given the risks involved for both medical staff and mothers it is therefore highly unlikely that any such abortions will be carried out in the immediate future.

So where does this leave us?

The judge is currently reading through the 1861 Offences Aganist the Person Act to see if it can be interpreted in such a way as to allow abortions in the two instances concerned. Were that to be the case there would be no need for further legislation. Don’t hold your breath on that one.

Next will be a further hearing on December 16 when the judge will decide whether or not to to declare incompatibility, which would require the Assembly to change existing legislation.

In the meantime there is a strong possibility of an appeal. If this happens then the declaration would not come into effect until the appeal is settled at the Court of Appeal or Supreme Court, a process which is likely to take a minimum of a year.

Furthermore if new legislation is required it is highly unlikely to be tabled until after that process is complete and there is no guarantee whatsoever that any new proposals will be passed by the Assembly.

If that proves to be the case and the Department’s guidelines do not change, then anyone involved in carrying out or procuring an abortion in these instances would risk prosecution and be gambling that the Director of Prosecutions won’t authorise one, and if he does the Crown Court backs Mr Horner and rules that any such prosecution is an abuse of the legal process.

That’s a big risk for the doctor, mother and others involved in the termination to take.

So yes, a historic, landmark ruling, but how long it might take before real change occurs is a very different and more complex issue.