Will the courts force through abortion reform?

There is more than one way to change public policy. Most interest groups concentrate on lobbying politicians and civil servants to convince them of the justice of their case in the hope that they will act on it. This can be effective.

In relation to abortion reform the Human Rights Commission is taking a very different route: it is challenging existing Northern Irish law in the courts. A judicial review is scheduled for early summer.

There is a lot at stake in its impending action: if it wins, doubtless there will be an appeal process but ultimately the law will have to be changed regardless of the deeply held convictions of many of our politicians across the political spectrum.

If it loses, it is hard to see reform coming: there is too much opposition throughout Stormont for new legislation to get through the Assembly.

The Human Rights Commission’s case is very specific. It argues that women and girls should have the option of abortion in circumstances of serious malformation of the foetus, rape or incest.

The Department of Justice’s current proposals, which are confined to lethal foetal abnormality, do not go far enough for the Commission and it argues that not having all these options is a breach of women’s human rights.

So what is the legal basis of the case?

The Commission has provided a briefing paper outlining its case.

This starts by citing the little known United Nations Committee on the Elimination of Discrimination against Women (CEDAW) which regularly reviews the performance of governments in upholding women’s rights. It produces recommendations of where it believes that governments are failing and expects them to act upon them.

The latest report on the UK can be accessed here.

The relevant passages are as follows: “The Committee … is concerned that abortion continues to be illegal in Northern Ireland in all cases except where continuance of the pregnancy threatens the life of the mother, thus making it necessary for women to seek abortion in other parts of the State party.”

It adds: “the State party should expedite the amendment of the anti-abortion law in Northern Ireland with a view to decriminalise abortion. The State party should also ensure that legal abortion not only covers cases of threats to the life of a pregnant woman but also other circumstances such as threats to her health and in cases of rape, incest and serious malformation of the foetus.”

It could not be clearer. However it is not quite as simple as that and to date the Westminster government has not moved on the issue.

Oxford Law Professor Sandra Fredman says that the UK takes a very cynical view of the body: “To the extent that existing practices and policies happen to comply with CEDAW, it is happy to report compliance; where there is a challenge or a shortfall, however, it generally finds a means to justify its reluctance to change.”

This is compounded by the fact that CEDAW has not been incorporated into domestic law so its recommendations are not directly enforceable. In the case of Northern Ireland’s abortion law the position is further complicated by the fact that this area is devolved and Westminster is, to say the very least, reluctant to intervene on such a sensitive matter.

The Human Rights Commission’s action breaks new ground by citing CEDAW which will presumably be used as evidence to interpret the alleged inadequacy of current abortion law to protect human rights.

So which human rights are being violated?

The HRC cites the following:

Article 3 of the European Convention on Human Rights which prohibits torture, and inhuman or degrading treatment or punishment. Article 8 which underpins everyone’s right to privacy and article 14 which protects people against discrimination.

It is fascinating to note that the European Court dealt with both those issues last year in a case three women took against the Irish State (A,B,C v Ireland). One of them who had cancer and feared for her life if she did not have an abortion won her case, the other two who had had to travel to England for their terminations lost The courts ruled that the travel involved did not amount to torture or inhuman treatment and that the Irish state “struck a fair balance” in respect of their private lives and the “invoked rights of the unborn.”

This case however is different because greater access to abortion is available in the rest of the UK and the UK itself is subject to a CEDAW recommendation on abortion law in Northern Ireland, a UN body to which it is a signatory.

Whatever the result the judgement will have huge implications for abortion law here.