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Supreme Court hears challenge to Northern Irish abortion law

DATE: 25 Oct 2017

On Tuesday 24 October 2017, the Supreme Court began to hear a three-day appeal by the Northern Ireland Human Rights Commission on the lawfulness of Northern Irish abortion legislation. The Abortion Act 1967 does not apply in Northern Ireland. The Offences Against the Person Act 1861 and the Criminal Justice Act (Northern Ireland) 1945 make it unlawful to perform an abortion, and unlawful for a woman to seek an abortion, unless it is necessary to preserve the life of the pregnant woman. Following the case of R v. Bourne [1939] KB 687, in order to fall within the exception for preserving the life of the pregnant woman, a doctor must be of the opinion that the probable consequence of continuing with the pregnancy would be to make the woman “a physical or mental wreck”.

The Commission is arguing that prohibiting abortion in cases where the pregnancy is the result of rape or incest, or involves a serious foetal abnormality, means that the legislation is incompatible with Articles 3, 8 and 14 read with 8 of the European Convention on Human Rights. The Department of Justice and the Attorney General of Northern Ireland resist the claim on all grounds, and also claim that the Commission does not have standing to bring the claim because it has failed to identify either a victim or an unlawful act.

The Commission’s claim succeeded in the Northern Ireland High Court on Article 8 grounds for cases of rape, incest and fatal foetal abnormality, but an appeal by the Attorney General and Department of Justice was allowed by the Northern Ireland Court of Appeal. At the Attorney General’s request, the Court of Appeal also made a devolution reference to the Supreme Court on the issues of the “victim” and unlawful act requirements. The appeal in the Supreme Court is due to last until Thursday 26 October 2017 and is being heard by a panel of seven Justices.

David Blundell appears as junior to the Northern Ireland Human Rights Commission. A link to press coverage can be found here.