The ongoing debate: abortion law in Northern Ireland.

As the end of my first semester of final year law was approaching its conclusion, a news story broke that has proven to be ground-breaking here in Northern Ireland. I can recall exactly where I was at the time the judgment pertaining to humans rights recognition was delivered: I was, ironically enough, in the middle of a seminar for my Understanding Human Rights module. You can imagine that when the news trickled through the class, a murmur arose, and eventually our lecturer used the ruling as an example of the current critique we were studying that day in class.

The case was in relation to Northern Ireland’s abortion law, and the breaking news pertained to the ruling of a High Court Judge that said law, and its almost outright ban on abortion, breaches the human rights of women and girls, including rape victims. It must be noted that Northern Ireland has strict abortion laws: applying an 1861 law that means a woman can seek an abortion only if a doctor determines that carrying a pregnancy to term will endanger her life. Abortions are illegal in cases of rape and fatal foetal abnormality; these were the grounds being contested in the High Court. Moreover, anyone who carries out an illegal procedure can be jailed for life.

Since this ruling, the abortion law in my home state of Northern Ireland has featured heavily in the local media. This past week however has seen it covered by national media. I even spotted it being featured in POLITICO EU today. This is due in no small part to the new DUP party leader and First Minister, Arlene Foster announcing that whilst she would ‘carefully consider’ the recent High Court ruling, ultimately she would adhere to her Democratic Unionist Party’s opposition to reforming strict abortion laws.

Ms Foster, the first female First Minister in the history of the power-sharing executive in Northern Ireland, ‘vowed‘ in early January of this year to prevent the Abortion Act 1967 which provides for the legalisation of abortion in the UK, from being extended to Northern Ireland. However, she did acknowledge that the Executive will have to carefully consider the landmark judgment from the High Court, whereupon Mr Justice Horner ruled that by denying abortions to women who had become pregnant through rape, this was a violation of the women’s human rights laws and a breach of British and European human rights laws.

Now, despite her statement defending the existing law, Ms Foster’s acknowledgement of the November 2015 court ruling suggests politicians in Northern Ireland may be preparing for judicial decisions that would force the Assembly’s hand, and potentially introduce a degree of liberalisation. Mr Justice Horner did rule out imposing changes that could have led to limited terminations taking place in Northern Ireland following his ruling: he stated allowing abortions for victims of sexual crime and cases of fatal foetal abnormality under the present law would ‘be a step too far‘. His decision has thus placed the onus on the Assembly to consider his judgment. At present, there is no legal compunction on Stormont’s politicians to change the law.

After all, whilst the ruling is ground-breaking, generating a lot of discourse, it is not legally binding per se. The judge ruled Northern Ireland’s abortion laws are incompatible with the Human Rights Act 1998 which enshrines the ECHR into domestic law. Declaring a law to be incompatible with the ECHR does not render it invalid per s4(6) of the HRA 1998. The HRA 1998 provides that parliamentary sovereignty remains paramount; in the case of Northern Ireland the Assembly will decide whether to devise a bill pertaining to abortion in the state in light of the judge’s ruling. The Executive may also suggest a bill in light of the ruling.

In sum: new legislation would be needed to enforce the ruling. It will, however, be complicated by the fact that the main political parties in Northern Ireland oppose relaxing abortion restrictions. An alliance of evangelical Protestants, the Catholic Church and a majority of the assembly’s politicians has resulted in Northern Ireland remaining excluded from the UK 1967 legislation.

Now, from a law student perspective: I feel that due to my study of Jurisprudence this semester, I have been introduced to a variety of critical theories.  These different critical lenses introduced to have opened my eyes, so to speak, in that I have a new and fresh perspective on issues which I may not have had before. I will focus on the application of feminist critical theory to this current affairs story from Northern Ireland. This story illustrates the entwined nature of politics and law, especially in relation to human rights recognition – a close relationship I always reiterate in my posts.

​Regarding the High Court ruling on NI’s abortion law​​, it can be determined the judge recognised the rights of women had been restricted, and legally so, by the Northern Irish government. Thus, it could be submitted that Horner J was striving to uphold the human rights of women in Northern Ireland.

This view probably would have been all I considered of the matter, but using the Feminist critical lens, I feel that I have been equipped to read further into the issue than what I would have done before. I will now apply this critical theory as follows.

Firstly, we could critique the ruling itself: Horner J stated ‘I conclude that the Article Eight rights of women in Northern Ireland who are pregnant with fatal foetal abnormalities or who are pregnant as a result of sexual crime are breached by the impugned provisions’. He essentially ruled the current law should be expanded to provide for abortion in the cases of fatal foetal abnormalities, incest and rape alongside the current provision of facilitation of the mother’s well-being. He did not rule that the current law, being generally a severe restriction on abortion, was in fact detrimental to women’s rights – he ruled that the almost absolute ban was, and to me this marks a distinction being made. The result is a finding of something very different. A Feminist critique would say this ruling was disappointing, as it still maintains the government has a right to legislate against the woman’s right to control her own body and make her own choices. It continues patriarchal oppression, ​​subjugating the female body to the legislative rule of the mostly male Assembly. Through Horner J’s suggestion that the Assembly now legislate to give effect to his ruling, I venture that a radical feminist would argue that this is an incomplete ruling, and is the consequence of a male judge having presided over the case. Arguably, due to his male gender, he may have failed to fully comprehend a wholly female experience.

In considering the notion of human rights in this issue, I am reminded of MacKinnon and her question of whether women are human, or merely treated as bodies to be owned and used: abortion essentially becomes an argument of the rights of the mother v the rights of the unborn child, resulting in rendering the mother as a vessel, and not as a person. Therefore we should find ourselves asking: what must be present to define someone as ‘human’ and thus entitled to rights? Moreover, we cannot assume all women share the same thoughts on ruling of Horner J, or indeed even the same thoughts on feminism. I guarantee you that what I define as feminism will differ compared to another’s perspective on same.

Brown makes an interesting ​point when she remarks there is a paradox at play in rights discourse; that the more specified ‘rights ​​for women’ become, the more likely a fence is created around the definition of ‘woman’.  For example, this ruling arguably considers all women as potential child-bearers -what about trans* women? What about women would are not able to have children?

I would submit that the greatest paradox present in human rights discourse (indeed, in general political and legal discourse) is that to rely upon rights, we must be labelled in such a manner to deserve rights. Therefore women must be branded ‘victims of state oppression’ to be granted a right to control their bodies, and in order to obtain this right from the same state. It is a cyclic argument, with no apparent end in sight.

The Health Minister announced in December 2015 there were new proposed abortion guidelines for healthcare staff in Northern Ireland being considered by the Stormont Executive. This confirmation came merely 24 hours after the High Court ruling, even though such proposals have been floated for months. A case of political expediency and convenience? Perhaps, especially when the confirmation pertaining to these proposed new healthcare guidelines stated they will only be issued if they are approved by the Stormont Executive.

The debate will continue, of this I have no doubt. In addition, the decision to liberalise abortion laws in Northern Ireland heavily relies upon the Executive. But 2016 is a more important year in Northern Ireland, marking as it does the Assembly elections. It will be interesting to see whether the High Court ruling is discussed in party manifestos, whether any party pledges to propose a bill to legally recognise the court ruling and modify the current law. If the DUP returns as the largest party, which it traditionally does, then if such a bill were to be proposed and voted on, would the party once again evoke a petition of concern to block the voting results? I will await the election results with interest, for there may be important legal developments which arise as a result.