The High Court of Northern Ireland: Northern Irish Abortion Law Incompatible with the European Convention on Human Rights

Jane Rooney is PhD Candidate in Law at the University of Durham. Her research brings a comparative analysis to the extraterritorial application of human rights by domestic, regional and international adjudicatory bodies, with central focus on the approach taken by the European Court of Human Rights. She tweets @JaneMRooney. This post was originally published at European Futures and is reposted with permission and thanks.

On 30 November 2015 in the case of The Northern Ireland Human Rights Commission’s Application [2015] NIQB 96, the High Court of Northern Ireland found that Northern Irish law regulating abortion was incompatible with Article 8 (right to private life) of the European Convention on Human Rights (ECHR). This was an historical judgement made possible through the conjoined efforts of many, including women directly affected by the legislation, the Northern Ireland Human Rights Commission and Amnesty International.

Judge Horner (Mr Justice Mark Horner) delivered a judgement that engaged with many complex legal, political and social questions which, although not entirely beyond criticism, is to be applauded. He found that the foetus does not have a right to life under Article 2 ECHR; that there is no domestic consensus on issues relating to abortion in Northern Ireland; and that permitting a woman to travel to England to receive an abortion does not mitigate against the harshness of the regulations in place.

The Decision of Judge Horner

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Inherently Human: Volume 33

Snapshots of law, gender and sexuality news from the past couple of weeks.

UK to legalise ‘three-parent babies’

Catherine Ravenscroft, Durham University

The UK is poised to become the first country in the world to legalise the creation of IVF embryos via so called ‘three-parent babies’. This IVF procedure involves the combination of genetic material from two different egg cells, with the aim of preventing the transmission of mitochondrial diseases. Such diseases are caused by defective mitochondria in the eggs of the mother and it is suggested that by replacing these with the mitochondria of a healthy donor egg these conditions could be eradicated.

However the new procedure is not welcomed by all. Professor Evan Snyder, chair of the scientific panel advising the US Food and Drug Administration on mitochondrial transfer, insists it still too early to legalise. While conceding the need for eradication of these diseases, he contends the treatment should not be allowed until extra research is completed. This is because, he says, “we don’t know whether these changes will be passed on to future generations.”

Stuart Newman, professor of cell biology and anatomy at New York Medical College, has also expressed concern that the procedure could lead to “developmental or physiological malfunctions”. Such things are already symptoms of the diseases which this treatment seeks to prevent. Any such side effects would, therefore, be detrimental to the aim behind any legislation by Parliament.

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Rights versus Remuneration: The English NHS and Abortion Services for Women from Northern Ireland

Dr. Sylvia de Mars, Lecturer in Law at Newcastle Law School, Newcastle University

This post has been cross-posted from Human Rights in Ireland with permission and thanks.

Given that my  research considers the access rights of EU nationals to the English NHS, last week’s England and Wales High Court decision in R (on the application of A & Anor) v Secretary of State for Health didn’t come as much of a surprise, but remains regrettable. There are two dimensions to this case, which dealt with the question of whether or not Northern Ireland residents can obtain abortions with the English NHS free of charge.  The first dimension is a public law one, looking primarily at the organisation and funding of the healthcare services in the United Kingdom, and the second is a human rights one. 

In rejecting the claim, the High Court applied public law as it currently stands in England, and though the judgment does not state this explicitly, one would assume that it has done so not least of all because the issue of access to the English NHS has been an increasingly politically sensitive one in recent years.  What few restrictions exist in English law to entitlement to access the NHS, the English courts have in this case attempted to uphold, and they have done so by emphasising that healthcare is a devolved matter:

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Inherently Brief: Volume 13

In our first post in the new academic year, a number of contributors have gathered a string of scintillating stories from across the country and around the world.

Abortion

On time limits…

Polly Broad

Maria Miller, the Conservative minister for women’s issues and equality as well as secretary of state for culture, media and sport, has recently voiced her support for a reduction of the legal limit for abortions, from 24 weeks to 20 weeks. She cites advances in medical technology to support her opinion, arguing “what we are trying to do here is not to put obstacles in people’s way but to reflect the way medical science has moved on”. Many have objected to Miller’s argument that many more babies are surviving at 24 weeks or below, pointing, for example, to statistics from the Office of National Statistics in 2010 which showed that only 12% of babies born before 24 weeks lived for at least a year.

Miller’s statement has worried many pro-choice activists. Darinka Aleksic, the campaign co-ordinator for Abortion Rights, said: “The fact that the minister responsible for women and equalities wants to restrict access to abortion, one of the most important women’s health services, is really alarming.” Meanwhile, Jeremy Hunt the recently appointed Health minister, called for the legal abortion limit to be halved. Many are wondering whether the government will soon make changes, despite David Cameron’s repeated statements that he has no plans to review the abortion laws.

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