Divisional Court finds law permitting abortion of fetuses with Down’s Syndrome after 24 weeks lawful

Royal Court of Justice

The challenged law

In England and Wales, abortion is generally permitted before the 24th week of pregnancy; after this period, abortion is only lawful in limited circumstances. Section 1(1)(d) Abortion Act 1967 permits medical termination of pregnancy if:

“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.”

Crowter involved a challenge to s1(1)(d) Abortion Act 1967 on the grounds that it violates several rights enshrined in the ECHR, namely: the unborn child’s right to life (Article 2) and freedom from inhumane and degrading treatment (Article 3) as well as the right to private life, including a right to found family, of disabled persons who have been born (Article 8), read together with protection from discrimination (Article 14).

Sitting as a Divisional Court, Singh LJ and Lieven J dismissed the claim.

Whether s1(1)(d) Abortion Act 1967 violates the unborn child’s Article 2 & Article 3 rights

It was argued that section 1(1)(d) of the 1967 Act is incompatible with Article 2 as it permits termination of the life of a disabled unborn child, even after 24 weeks at a time when it is both viable and sentient. This is not permitted in the case of a non-disabled child.

In rejecting this position, the Court held that the ECtHR has never decided that a fetus is a bearer of ECHR rights and it was not for the domestic Court to go beyond that jurisprudence. The question of when life begins is left to the margin appreciation of Member States. In the present case, the UK had not granted unborn children Article 2 rights; the fact that the domestic law of murder did not protect the life of the unborn child, but rather the offence of child destruction did, was telling in this respect.

This reasoning also led to rejection of the Article 3 ECHR argument.

Whether s1(1)(d) Abortion Act 1967 violates Article 8 rights

It was argued that s1(1)(d) of the Abortion Act 1967 breached Article 8 ECHR in that it  stigmatised disabled persons as living a life of less value than others. Comments of the Committee on the UN Convention on the Rights of Persons with Disabilities (the “CRPD Committee”) were relied on to support this point.

The Court dismissed the argument. It found that s1(1)(d):

“102… does not perpetuate and reinforce negative cultural stereotypes to the detriment of people with disabilities.  We are not persuaded that there is any causal connection between this legislative provision, focused as it is on the rights of pregnant women and their medical treatment, and any discrimination that continues to be suffered by those with DS despite the extensive legislative provisions aimed at preventing such discrimination, in particular in the Equality Act 2010.”

On the use of comments made by the CRPD Committee, the Court relied on the recent Supreme Court judgment in R (AB) v SSJ [2021] UKSC 28 to find that these materials could not be relied upon.

Alternatively, the Court went on to consider the issue of justification and found that s1(1)(d) of the Abortion Act 1967 was justified in any event in protecting the rights of women and other family members. This was because Parliament had a wide margin of appreciation on this issue – there being no European consensus on this point – and Parliament, having carefully considered the various interests and rights, had struck the balance it thought appropriate. The outcome fell within the margin allowed by Article 8 in this context. Moreover, the Court considered that it was not well placed to weigh in on this issue, given the nature of legal proceedings which involve only a handful of parties. Rather, Parliament was the better place to make these decisions, having taken into account the views and evidence from all sides.

Whether s1(1)(d) constitutes discrimination against children born with physical or mental abnormalities contrary to Article 14

Having ruled that the law does not interfere with the Article 2, 3 and 8, the Court also rejected the claim that the law constituted discrimination contrary to Article 14.

Following the analysis of Lord Reed in R (SC) v SSWP [2021] UKSC 26, the Court considered that a wide margin of appreciation was also appropriate for the purposes of the Article 14 analysis in the present case. This was particularly in light of the difficult balance that had to be struck by Parliament between the interest of the fetus and the rights of women.

For the same reasons as those set out in the Article 8 analysis, s1(1)(d) fell within that broad margin.

Yaaser Vanderman is a barrister specialising in public law and human rights. He, alongside Julia Smyth, appeared for the Secretary of State for Health and Social Care in Crowter.

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