Human Rights
By Conal McGarrity
Latest News

Judicial Review – an Engine for Reform of Abortion Laws in Northern Ireland

Abortion law has been a contentious issue in Northern Ireland for some time. The law governing abortion in this jurisdiction is much stricter than in the rest of the UK. Currently termination of a pregnancy is only permitted in Northern Ireland if a woman’s life is at risk or a permanent and serious threat is posed to her physical and mental health. Rape, incest and cases of fatal foetal abnormality are not grounds for legal abortion under the current legislation.

The repeal of the 8th Amendment in the Republic of Ireland, which effectively decriminalises abortion in that jurisdiction, has led to further calls for the oppressive legislation to be repealed in Northern Ireland. Several Judicial Reviews challenging Northern Ireland’s abortion law on the grounds that it is incompatible with international human rights law have been initiated and some are ongoing. In 2018 the Supreme Court agreed that Northern Ireland’s legislation was incompatible with human rights law in cases of sexual crime and fatal foetal abnormality.

This challenge was taken by the Northern Ireland Human Rights Commission, however, the case was dismissed on the basis that the organisation did not have standing to bring the Judicial Review and that it would need to be taken by someone directly and personally affected by the legislation. This has led to challenges by individuals such as Sarah Ewart, who was advised by her doctor at her 20-week pregnancy scan that her unborn child had anencephaly and the scan did not show a skull. She was told that she would have to continue with the pregnancy until her inevitable miscarriage.

Ms. Ewart is campaigning for repeal of the legislation and has issued Judicial Review proceedings with the intention of seeking a Declaration of Incompatibility. Another Judicial Review has been taken against the Public Prosecution Service for a decision to prosecute a mother for buying abortion pills for her 15-year-old daughter.

The context of this case has illuminated some of the existing problems with abortion law in Northern Ireland. The 15-year-old girl became pregnant after being involved in a physically and mentally abusive relationship with her partner, who threatened to ‘kick the baby out of her and stab it if it was born.’ Her mother purchased abortion pills online and later consulted her GP about ongoing problems. A police investigation ensued, and the daughter’s confidential medical records were seized without her consent. Several charities have come out in support of this challenge, stating that pursuing this prosecution would deter women from seeking medical help in the same circumstances. Particularly in the context of aftercare treatment.

Another concern is that medical professionals would be placed in a difficult position where they would be compelled to refer matters to the police if they suspect someone has taken abortion pills. A representative from the Family Planning Association has stated that ‘the decision to prosecute a mother for facilitating an abortion flies in the face of the recommendations of all major international human rights committees that abortion should be decriminalised.’ While any repeal or amendment to the laws governing abortion in Northern will have to be formally made by legislators, there is no doubting the power of Judicial Review in challenging inequalities and enforcing change.

A Judicial Review can be taken against a public body if a decision is considered to be illegal, irrational, unreasonable or procedurally improper. Judicial Review is used as a remedy of last resort, when all other internal appeals processes have been exhausted. At PA Duffy and Company our expert human rights and Judicial Review solicitors are vastly experienced in taking Judicial Review proceedings in important human rights matters, including access to appropriate healthcare and education.

We believe in upholding and promoting basic human rights and can offer a highly specialised service. If you are unsure about whether you have grounds for a Judicial Review, why not arrange an appointment and our solicitors will advise you on how to proceed.

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