The Attorney General for Northern Ireland and Another v The Northern Ireland Human Rights Commission: CANI 29 Jun 2017

Appeal by the Attorney General and Department of Justice against an Order declaring that sections 58 and 59 of the 1861 Act and section 25 of the 1945 Act were incompatible with Article 8 of ECHR insofar as it is an offence:
(i) to procure a miscarriage at any stage during a pregnancy where the foetus has been diagnosed with a fatal foetal abnormality;
(ii) to procure a miscarriage up to the date when the foetus is capable of being born alive where a pregnancy arises as a result of rape or incest.
Lord Chief Justice, Sir Declan Morgan, suggested that it was possible to construe the words, ‘for the purpose only of preserving the life of the mother’ so as to include circumstances where the mother’s life ‘was significantly adversely affected’: ‘I accept that the grain of the 1861 Act and the 1945 Act was intended to provide substantial protection for the foetus but in my view the phrase ‘for the purpose of preserving the life of the mother’ cannot in present circumstances be interpreted reasonably as confining protection for the mother by way of abortion to those circumstances where it is likely that she will be a physical or mental wreck. I have had the benefit of affidavits sworn in these proceedings by Sarah Ewart and AT [Ashleigh Topley]. Some aspects of the effect on these women of the prohibition of abortion in this jurisdiction in their circumstances have been described in [earlier paras of the judgment]. The present law prioritises the need to protect to a reasonable extent the life that women in these emotionally devastating situations can enjoy. In my opinion that requires the court to determine what is reasonably tolerable in today’s society. That is not to be defined by the values of the 1930s. I conclude that circumstances such as those described in those affidavits fall within the scope of the Bourne exception interpreted in accordance with that test. I consider that in each case the effects on these women were such that the option of abortion in this jurisdiction after appropriate advice should have been open. That conclusion is not dependent upon the state of health of the foetus.’
Gillen LJ expressed disagreement with these statements. He considered that it was ‘institutionally inappropriate’ for the court to ‘change the effect of the legislation and its interpretation in R v Bourne’.
Morgan LCJ, Gillen LJ and Weatherup LJ
[2017] NICA 42
Offences against the Person Act 1861 58 59, Criminal Justice Act (Northern Ireland) 1945 25, European Convention on Human Rights 8
Northern Ireland
CitedFamily Planning Association of Northern Ireland v Minister for Health Social Services and Public Safety CANI 8-Oct-2004
A termination of pregnancy is lawful when its continuation would threaten the woman’s life or when it would probably affect her physical or mental health but only if the effect would be serious and, in particular, permanent or long-term . .

Cited by:
Appeal fromHuman Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 July 2021; Ref: scu.605108