The Northern Ireland High Court is this week hearing a challenge by the Society for the Prevention of Unborn Children (“SPUC”) against the Abortion (Northern Ireland) Regulations 2021 and the Abortion Services Direction 2021.
By these enactments, the Secretary of State for Northern Ireland has directed the Minister for Health, amongst other things, to secure the commissioning of abortion services so that they are provided by 31 March 2022. In addition, he has directed the First Minister and deputy First Minister to include abortion-related matters brought forward by the Minister for Health, which require executive approval, on the agenda for the next meeting of the Executive Committee.
SPUC has challenged these enactments on various grounds, including that: (a) they are unconstitutional for purporting implicitly to amend the Northern Ireland Act 1998; (b) they are ultra vires the enabling power in the Northern Ireland (Executive Formation etc) Act 2019; and, (c) they breach Article 2(1) of the NI Protocol for violating the UN Convention on the Rights of Persons with Disabilities, given that they seek to enforce rules allowing abortion of fetuses with severe fetal abnormalities.
This case follows an earlier case brought by the Northern Ireland Human Rights Commission, by which it was argued that the failure to fund and commission the framework of abortion services in Northern Ireland – as provided by the Abortion (Northern Ireland) Regulations 2020 – was unlawful.