Northern Ireland's 19th-Century Abortion Law Violates Human Rights: Judge

The nation's restrictive abortion law has barely changed since 1861.

A judge in Northern Ireland's high court on Monday ruled that the nation's restrictive abortion law is a violation of human rights. 

Passed in 1861, Northern Ireland's draconian abortion law makes it illegal to perform or obtain an abortion unless the mother's life is imminently at risk; it makes no exemptions for instances of rape, incest or when continuing the pregnancy will result in "serious malformation" or fatal fetal abnormalities. The penalty can be up to life in prison. 

"By imposing a blanket ban on abortion, reinforced with criminal sanctions, it prevents any consideration of the interests of the women whose personal autonomy has been so vilely and heinously invaded," Justice Thomas Mark Horner wrote in his ruling. "A law so framed can never be said to be proportionate."

Monday's ruling does not impact the nation's abortion law at large, but strikes down the criminalization of abortions sought in cases of rape, incest or major malformation.

Since 1970, a total of 59,614 Northern Irish women have traveled to England to obtain an abortion, according to Tarah Demant of Amnesty International USA.

"This includes women who are carrying a dead fetus or who have undergone extreme trauma," Demant said. "This type of restriction has meant women who have not had means or access have not had the same rights as wealthier women."

The Northern Ireland Human Rights Commission in June filed a challenge to the abortion law under Article 8 of the European Convention on Human Rights outlining the "Right to Respect for Private and Family Life."

Horner on Monday shot down the moral, practical and ethical arguments set forth by Northern Ireland Attorney General John Larkin.

"It does not protect morals to export the problem to another jurisdiction and then turn a blind eye," Horner stated. He noted that there was no evidence presented that suggests Northern Ireland's abortion law has resulted in "any reduction in the number of abortions obtained by Northern Irish women."

Horner also took issue with the way the law disproportionately impacts poor women, who have fewer resources to make the trip to England for a safe and legal abortion. 

"The protection of morals should not contemplate a restriction that bites on the impoverished but not the wealthy," Horner wrote. "That smacks of one law for the rich and one law for the poor."

Larkin has already said he may appeal the ruling.   

Candles outside of Belfast City Hall, Northern Ireland, on Nov. 15, 2012, burn for Savita Halappanavar, who died of blood poi
Candles outside of Belfast City Hall, Northern Ireland, on Nov. 15, 2012, burn for Savita Halappanavar, who died of blood poisoning after suffering a miscarriage. Her father said a combination of medical negligence and Irish abortion laws led to his daughter's death.

As the U.K.'s abortion laws relaxed over time, Northern Ireland's remained stubbornly stuck in the 19th century.

The 1967 Abortion Act that allowed for abortions in cases where carrying a pregnancy to term would make the woman “a physical or mental wreck” was never extended to Northern Ireland. 

After her first pregnancy was given a fatal fetal diagnosis, Irishwoman Sarah Ewart said obtaining an abortion in England was "a living nightmare." Ewart later became a co-petitioner with the NIHRC. 

"I hope that today’s ruling means that I, and other women like me, will no longer have to go through the pain I experienced, of having to travel to England, away from the care of the doctors and midwife who knew me, to access the healthcare I needed," Ewart said in a statement Monday. 

Groups like the Dutch nonprofit Women on Waves have attempted to provide Northern Irish women with abortion services at sea. During a 2001 trip to the Republic of Ireland, 300 women contacted the ship's hotline seeking abortion services in just a five-day span, the group said.

Women on Waves founder and director Rebecca Gomperts said in an email that while Monday's ruling in Northern Ireland was important, "this is not sufficient for the majority of women who decide to have an abortion for different indications than cases of serious foetal malformation, rape or incest." 

Amnesty International's Demant praised efforts like those of Women on Waves, but noted they are only sporadically available to women to begin with. 

"Northern Ireland has been exporting its human rights duties," Demant said. "This has created a dual track for who gets to access human rights. Women do not access the same privacy rights and human rights as men do." 

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