Court of Appeal hears challenge to law permitting abortion on the basis of disability

In R (Crowter) v Secretary of State for Health and Social Care, the Court of Appeal is today hearing a challenge to section 1(1)(d) of the Abortion Act 1967, which permits abortion at any time where “there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped”. The Divisional Court (Singh LJ and Lieven J) dismissed the challenge by three claimants who argued that the current law on abortion breaches the human rights of those with Down’s syndrome. Two registered medical practitioners have to come to this opinion in good faith. Importantly, there is no time limit on the application of this provision, meaning that it can be invoked throughout a woman’s pregnancy. The claimants (two of whom have Down’s syndrome and one of whom is a mother of a child with Down’s syndrome) originally argued that this provision is incompatible with Article 2 (right to life), Article 3 (right to be free from torture, and inhuman and degrading treatment), Article 8 (right to respect for private and family life) and 14 (prohibition of discrimination) insofar as it permits abortion anytime after 24 weeks’ gestation, particularly those with Down’s syndrome, many of whom would otherwise go on to live happy and fulfilled lives. The Divisional Court found that: (a) the European Court of Human Rights had never found that fetuses are the bearers of ECHR rights and it would not be appropriate for the Court to go further than the ECtHR on this issue; (b) the legislation did not perpetuate and reinforce negative cultural stereotypes to the detriment of people with disabilities; (c) it was far from obvious that the UN Convention on the Rights of Persons with Disabilities protected fetuses and, in any event, it had not been incorporated into domestic law; and, (d) this is a field where it is particularly important to give Parliament a wide margin of judgement given the rights of women involved. Permission to appeal was granted by the Court of Appeal on the sole issue of whether section 1(1)(d) of the Abortion Act 1967 breaches the rights of those persons born with Down’s syndrome insofar as it perpetuates and reinforces negative cultural stereotypes to the detriment of people with disabilities. The Divisional Court’s judgment can be found here. News reports of the case can be seen on BBC NewsITV and in the Guardian. Julia Smyth and Yaaser Vanderman are instructed on behalf of the Secretary of State for Health and Social Care.

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