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Supreme Court finds NI abortion law is in breach of international human rights law

  •  Supreme Court finds NI abortion law is in breach of Article 8 – right to a private and family life – of the European Convention on Human Rights.
  • The court heard details of harrowing cases, including a child who was raped by a family member who was forced to travel to England for care as a result of Northern Irish laws
  • The Court could not make a declaration of incompatibility because victims themselves would need to have brought the case, but justices nonetheless stated that a law which requires women "cede control of their bodies to the edict of legislation passed more than 150 years ago" was "untenable" and needed "radical reconsideration”
  • Lord Kerr highlighted that it would only take a “simple amendment” to the 1861 Offences Against the Person Act – which was debated in parliament this Wednesday – and the 1945 Criminal Justice Act (NI) to remedy breaches. 
  • Charities warn that the government cannot ignore today’s ruling and must bring forward legislation as a matter of urgency.


A Supreme Court judgment delivered today has found that the current abortion law in Northern Ireland is in breach of Article 8 – right to a private and family life –of the European Convention on Human Rights. The court was responding to a case brought by the Northern Ireland Human Rights Commission (NIHRC) with regards to access to abortion in cases of fatal fetal anomaly, rape, and incest. The Court ruled that the NIHRC did not have standing to bring these proceedings as it was not itself a victim, and therefore the Court was unable to make a declaration of incompatiblity, but the Justices warned that their findings should not be ignored by legislators.


The court heard from a number of those who had been affected by the near-total abortion ban in Northern Ireland including Denise Phelan, who discovered early in her pregnancy that her baby would not survive. Due to ill health, Mrs Phelan was unable to travel to England for a termination, and therefore had to continue the pregnancy until she was induced, 5 days after her baby had died within her womb. The court also heard that a “frightened and distressed” girl under the age of 13 who was raped by a family member was forced to travel to England for an abortion.


Supreme Court Justice Mance held that the “present legislative position in Northern Ireland is untenable” and the current law “clearly needs radical reconsideration.” Lord Mance also stated that “those responsible for ensuring the compatibility of Northern Ireland law with the Convention rights” should consider amending the law as early as possible “in the light of the ongoing suffering being caused by it as well as the likelihood that a victim of the existing law would… obtain a declaration of incompatibility in relation to the 1861 Act.”


Lord Kerr stated that the “remedy” to the breaches of human rights could be achieved through a “simple amendment” to  the  Offences Against the Person Act 1861 and the Criminal Justice Act (NI) 1945. 


Earlier this week, an emergency debate regarding repealing sections 58 and 59 of the Offences Against the Person Act 1861, which carry a potential sentence of life imprisonment for ending a pregnancy or assisting in a termination, received cross party support. MPs have indicated that they will attempt to use the government’s upcoming domestic abuse bill to decriminalise consensual abortion up to 24 weeks of pregnancy in England, Wales, and Northern Ireland by repealing these sections.


A coalition of healthcare charities and women’s rights organisations intervened in the case: the Family Planning Association, FPA, the British Pregnancy Advisory Service, bpas, Birthrights, the Abortion Support Network, Royal College of Midwives, Alliance for Choice, and Antenatal Results and Choices, ARC.


Commenting on the judgement:


Ruairi Rowan, Senior Advocacy Officer, FPA:


“For 30 years FPA have provided the only non-directive Pregnancy Choices Counselling Service in Northern Ireland and every day we see the impact that restrictive abortion law has on women and their families. In his judgment Lord Mance stated that the current 150 year old law in Northern Ireland is ‘untenable’ and in need of ‘radical reconsideration’ due to the ‘ongoing suffering’ it causes. FPA strongly agree. The human rights of women in Northern Ireland can’t be placed on hold and the UK Government must urgently act on this ruling by bringing abortion law in Northern Ireland into the 21st century.” 


Ann Furedi, Chief Executive of the British Pregnancy Advisory Service, bpas:


"These findings clearly illustrate the need for urgent action. It is unthinkable that the government would compel a woman herself to bring a complaint before it was moved to act on the findings contained in this judgment. As a charity which cares for women from Northern Ireland in these circumstances, we know that the current system of exporting women to England for treatment is simply not good enough. Women need care at home, and they should not be forced to wait longer.”


Breedagh Hughes, Royal College of Midwives Director for Northern Ireland, said: 


“This is landmark decision that I hope will lead to changes that will improve the lives of women in Northern Ireland and the care they receive. This is a fundamental issue about the rights of women which are too often denied the world over. Change on this is needed and needed now.”


Rebecca Schiller, Chief Executive of Birthrights:


"These last weeks have made it clear that we can no longer ignore the continued suffering and violation of Northern Irish women's human rights. The Supreme Court has recognised that denying women access to abortion in these circumstances in inhuman and intolerable. It is now time to listen to the women of the UK and ensure safe, accessible abortion - which saves and improves lives - is available to everyone who needs it. The time for change is now."


Danielle Roberts and Emma Campbell, Alliance for Choice:


“The comments coming from the Supreme Court today reinforce the findings of the recent CEDAW report. We need action on abortion law in Northern Ireland, and we urge Westminster to act as the body responsible for ensuring that our human rights are delivered.  We would take this opportunity to particularly thank Ashleigh, Denise, and Sarah for sharing their experiences so publicly. Their bravery will undoubtedly contribute to change.”


Mara Clarke, Founder of Abortion Support Network, ASN:


“As the organisation that hears from the people who are most affected by Northern Ireland’s draconian law – those who do not have the money and support networks required to travel to another country to access an abortion - Abortion Support Network is grateful to the Supreme Court for agreeing that the status quo in a disgrace. We fervently hope that this ruling adds to the growing number of calls for Northern Ireland to treat its women and pregnant people with fairness, compassion and respect.”




For more information please contact the bpas press office on 0207 061 3377, 07788 725185 or press@bpas.org