Fact Sheet on Termination of Pregnancy

FACT SHEET ON TERMINATION OF PREGNANCY

What is the case about:

The Northern Ireland Human Rights Commission is seeking a change in the law so that women and girls in Northern Ireland have the choice of accessing a termination of pregnancy in circumstances of serious malformation of the foetus, rape or incest.

Why is the Commission taking this case now:

International law has undergone significant development in recent years. The United Nations Committee on the Elimination of Discrimination against Women last year confirmed the requirement that access to termination of pregnancy be made available in Northern Ireland in circumstances of serious malformation of the foetus, rape or incest. Since November 2013 we have repeatedly advised the Department of Justice (DOJ) that the existing law is, in the Commission’s view, a violation of human rights. The Commission has initiated legal proceeding on this matter as a last resort.

Why is the Commission taking this case in its own name:

Given the potential vulnerability of women and girls in these situations, it is appropriate that we have used our powers to bring this challenge.

Is Termination of pregnancy available in Northern Ireland:

Termination of pregnancy is currently available in Northern Ireland if it is necessary to preserve the life of a woman where there is a risk of a serious and adverse effect on her physical or mental health which is either long term or permanent.

It is unlawful to perform a termination of pregnancy unless on these grounds. The punishment is life imprisonment for anyone who unlawfully performs a termination. Termination of pregnancy based solely on malformation of the foetus is unlawful in Northern Ireland.

In terms of “preserving the life of the pregnant woman” a doctor must be of the opinion on reasonable grounds and with adequate knowledge that the probable consequence of the continuance of the pregnancy will be to make a woman a “physical or mental wreck” (R v Bourne, 1939).

What are the potential outcomes of taking this Judicial Review:

The Commission is asking the Court to declare that the current law, relating to access to termination of pregnancy services for women in cases of serious malformation of the foetus or pregnancy as a result of rape or incest, is incompatible with human rights law and results in a breach of the rights of women and girls seeking a termination of pregnancy in these circumstances.

If the Court agrees with the Commission it will fall to the Assembly to consider whether to amend the law.

Role of Third party intervenors in the case:

A third party intervention is the term given to the process by which a body that is not a party in the case makes submissions to the Court. A third party intervener is essentially an outsider to the case and could be a private company or individual, an NGO, a Secretary of State or the Attorney General. A third party intervenor will make submissions, usually in writing that it considers are relevant to the case before the Court.

Is there a human right to a termination of pregnancy:

There is no general human right to a termination of pregnancy. However a woman does have a human right to access this service in certain circumstances including where her life is at risk, where there is a serious malformation of the foetus or in circumstance of rape or incest. The law in Northern Ireland does not provide access to a termination of pregnancy in all of these circumstances and is therefore in the Commission’s view in violation of human rights.

1967 Abortion Act:

The Commission is not seeking to introduce the Abortion Act 1967 in Northern Ireland and does not engage this law in this legal challenge. The Commission is seeking a change in the law so that women and girls in Northern Ireland have the choice of accessing a termination of pregnancy in circumstances of serious malformation of the foetus, rape or incest.

What is the Commission’s position on the right to life for the unborn child:

The Commission bases all of its positions in human rights law. Under this law, a state can decide to provide an unborn child protections. For example, a state may restrict a woman’s access to termination of pregnancy. Any such restrictions must not however violate a woman’s human rights.

The European Court of Human Rights has found that “it is neither desirable, nor even possible as matters stand, to answer in the abstract the question whether the unborn child is a person for the purposes of Article 2 of the Convention” (Mehmet Şentürk and Bekir Şentürk v. Turkey).

What is the position elsewhere:

In the 47 European member states, six do not permit termination of pregnancy on grounds of rape, incest and foetal abnormality.

Why are you not involving the Department of Health Social Services and Public Safety.

This case is seeking a change in the criminal law and it is therefore the responsibility of the Department of Justice for Northern Ireland.

What constitutes serious malformation of the foetus: This is a clinical decision which requires expert consideration of health professionals and the Department of Health, Social Services and Public Safety.

Do human rights protect a clinician’s right to object to carrying out a termination of pregnancy:

Human Rights law protects freedom of conscience. There is an obligation on the Northern Ireland Executive to ensure that this right is protected. It must also protect the right to access a termination of pregnancy in the circumstances required by law. The practical application of the law to ensure that both rights are adequately protected is a matter for the Department of Health, Social Services and Public Safety.

What Human Rights are engaged in this case:

This case directly engages Articles 3, 8, and 14 of the European Convention on Human Rights:

Article 3: Freedom from torture and inhuman and degrading treatment or punishment.

Prohibits torture, and inhuman or degrading treatment or punishment. There are no exceptions or limitations on this right.

Article 8: Right to privacy

(1) Everyone has the right for his private and family life, his home and his correspondence.

2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 14: Discrimination

The enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Article 14 is not a free-standing right and must be linked to another right if the Convention is to apply (in this case, Articles 3 and 8).

Timeline

In October 2014 -the Department of Justice published a public consultation on proposals to amend the criminal law on abortion to allow for termination of pregnancy in cases of lethal foetal abnormality and sought views on sexual crime.

In December 2014- the Northern Ireland Human Rights Commission initiated legal proceedings against the Department of Justice as a last resort. From November 2013 the Commission had repeatedly advised the Department of Justice (DOJ) that the existing law violates the human rights of women and girls. In the Commission’s view, the consultation published by the Department did not commit to making the changes that were necessary in law: the consultation addressed cases of lethal foetal abnormality and did not deal with serious malformation of foetus. The consultation sought public opinion on cases of sexual crime including rape and incest without putting forward proposals to change the law.

In February 2015 the Human Rights Commission successfully applied for leave to judicially review the law on termination of pregnancy in Northern Ireland at the High Court.

In April 2015- Speaking after the public consultation was completed, Justice Minister David Ford announced a recommended change to Northern Ireland’s abortion law. He stated he would ask the Executive for its approval to bring forward legislation to the Assembly which would allow for termination of pregnancy in cases of fatal foetal abnormality. He also proposed to allow for the inclusion of a conscience clause in the legislation, but stated he would not proceed with changes relating to pregnancy resulting from sexual crime.

15-17 June 2015-Human Rights Commission’s Judicial Review of the law on termination of pregnancy is listed for hearing at the High Court in Belfast.