Irish Judge Says Abortion Restrictions Violate Human Rights

By | December 3, 2015

NEW YORK, December 4 (C-Fam) A stunning ruling from a court in Northern Ireland declared that the country’s protective abortion laws violate a European human rights treaty.

Even abortion groups were surprised when Judge Mark Horner declared Monday that the European Convention on Human Rights requires state parties to allow mothers to abort their child in the womb when the child is unlikely to survive after birth or was conceived by a sexual crime.

The European Court of Human Rights, the highest authority on the treaty, has flatly said that there is no right to abortion in it. The Strasburg-based court has had multiple cases involving abortion in recent years, but has declined to claim any binding European consensus on the matter of abortion.

Justice Horner had no qualms about declaring to find such a “consensus.”

“The European consensus would suggest that the right to abortion on both sides of the border in Ireland should be extended,” Horner wrote in his opinion.

The Irish judge calculated the consensus by adding up the restrictive abortion laws of Europe and averaging them. The result of his calculus is that Poland’s law— allowing for abortion in cases where the life of a woman is at risk, “fatal fetal abnormality,” rape, and incest—should be the model legislation for countries wishing to restrict abortion, since it was more restrictive than Malta’s and San Marino’s, but less restrictive than Ireland and Northern Ireland.

Although sweeping in rhetoric, the ruling fell short of abortion groups’ aspirations—which called it a “step” toward immediate legislative changes—because it is limited in scope and in some respects undermines the claims of abortion groups.

Justice Horner found a “groundswell of support” for abortion exceptions in non-binding recommendations of UN bodies that say abortion should be de-criminalized in all cases. In his opinion Horner even noted an interim draft of the UN Human Rights Committee currently weighing whether or not to declare outright abortion as a human right in some circumstances.

Nevertheless, Justice Horner said there was no right to abortion in the European treaty and the ruling only made the narrow determination that Article 8 of the treaty on privacy and family life requires exceptions to abortion laws for “fatal fetal abnormality,” rape, and incest “up to the date when the fetus becomes capable of existing independently of the mother.” Currently, Northern Ireland allows mothers to abort their unborn children only when the mother risks losing her life or health.

Moreover, Horner said allowing abortion on the basis of disability “smacks of eugenics” and that prohibitions on abortion cannot be deemed to constitute torture under the European treaty.

U.K. courts may not strike down a law, but they have the authority to interpret legislation in order to make it compatible with human rights if a statute is silent or ambiguous on a point. When this is not possible they may issue a declaration of incompatibility asking the legislature to change the law.

The immediate effect of the ruling is yet to be determined. Health Minister Simon Hamilton circulated a draft of new guidelines on abortion law and practice. Attorney General John Larkin said he is “considering the grounds for appeal.”

The case is likely to be appealed to the highest court in Northern Ireland, and possibly the Supreme Court of the United Kingdom. Beyond that, the European Court of Human Rights might want to have a say.

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