The U.K. Supreme Court last summer ruled that Northern Ireland’s laws banning abortion were impermissible under the European Convention on Human Rights, claiming that prohibiting abortion in cases of rape, incest, and life-threatening fetal disability constituted a violation of rights under Article 8. The U.K. Supreme Court, however, stopped short of overturning Northern Ireland’s abortion laws on a legal technicality, reasoning that the party bringing the case, the Northern Ireland Human Rights Commission (NIHRC), did not have standing because it could not claim to be a victim in the case.
As a result, a new case was filed on behalf of Sarah Ewart, a 28-year-old woman who travelled to England in 2013 to terminate her unborn child diagnosed with anencephaly, alleging Ewart was a victim of Northern Ireland’s abortion restrictions. The case was recently argued before the High Court of Justice in Belfast and the court will hand-down a decision on the case in the near future. The Supreme Court’s decision in the NIHRC case from last summer is likely to have a big impact on the reasoning and outcome for the Ewart case.
But despite the Supreme Court’s claim that Northern Ireland’s abortion law violates Article 8 of the European Convention, the European Court of Human Rights (ECtHR) has never ruled that states are in any way required to legalize abortion in cases of fetal disability or in cases of rape and incest under the Convention.
Although the ECtHR has found cases where states have denied women access to legalized abortion in some cases to be a violation of Article 8, the ECtHR has never found states to be in violation of Article 8 as a result of the state’s choice to make abortion illegal.
For instance, in A,B & C v. Ireland, the ECtHR found that Ireland’s laws banning abortion were a violation of Article 8(1) but that, per Article 8(2), this was a permissible violation because Ireland’s abortion ban advanced a “legitimate aim of the protection of morals of which the protection…of the right to life of the unborn was one aspect.”
In another case, R.R. v. Poland, the ECtHR ruled that actions taken by the government to obstruct women’s access to abortion in cases of severe disability could constitute a violation of Article 8. But in this case, abortion was already legal under Polish law in cases of severe fetal disability. In R.R. v. Poland, the ECtHR did not rule that states must provide abortion in cases of fetal disability but merely that states are not permitted to obstruct women’s access to abortion procedures that are already legal under domestic laws.
For the ECtHR, the question of whether states decide to make abortion legal or illegal is for states alone to decide and a decision which cannot be forced upon them by the European Convention. The ECtHR made this point clear in several of its key decisions on abortion, including R.R. v. Poland, A,B & C v. Ireland, and Vo v. France. According to the ECtHR, when deciding whether or not to legalize abortion states are accorded a “broad margin of appreciation”, under the Convention:
No decision from the ECtHR has ever compelled states to legalize abortion in cases of rape, incest, or life-threatening fetal disability. Despite this, the U.K. courts have attempted to reinterpret the ECtHR’s opinions as requiring Northern Ireland to legalize abortion in those cases.
In its 2015 decision in the NIHRC case, the High Court of Justice in Belfast argued that Northern Ireland ought to legalize abortion under Article 8 because, unlike Ireland in the A,B & C case, the people of Northern Ireland are, the court claimed, less opposed to the legalization of abortion. The High Court argued that because Northern Ireland only has statutory prohibitions on abortion and does not have a constitutional amendment guaranteeing the right to life prior to birth as Ireland did, Northern Ireland’s abortion law, the court claimed, is not “based on profound moral values” of the people of Northern Ireland and thus, the premise of the law being a “legitimate aim,” as was the case in A,B & C v. Ireland, did not apply.
The Supreme Court also alleged that there were no clearly and firmly expressed views from the government of Northern Ireland that would indicate that the government supports its current law banning abortion. The Supreme Court also took note of opinion polls that seem to indicate public support for the legalization of abortion. The court reasoned from this that no such “profound moral values” prevailed among the people of Northern Ireland as was the case in A,B & C v. Ireland. The Supreme Court further alleged that because there were only statutory restrictions on abortion in Northern Ireland that the unborn child had no positive right to life.
However, the ECtHR in A,B & C v. Ireland specifically chose not to consider opinion polls as a barometer of the views of the Irish people in that case. It would seem then that considering opinion polls in the Ewart case, even to inform the case as the Supreme Court did in the NIHRC case, would be an invalid method of interpretation.
Moreover, there is no indication that A,B & C v. Ireland would have been decided differently if Ireland only had statutory laws banning abortion. It is true that the ECtHR referred to Ireland’s constitutional amendment protecting the right to life for the unborn in its justification for why it considered Ireland to have “profound moral values” for banning abortion. However, there is nothing in the A,B & C case that would suggest that the court would have arrived at an opposite conclusion if Ireland had no such constitutional amendment. Thus, the absence of a constitutional amendment protecting unborn life in Northern Ireland cannot be used as proof that there is no “profound moral valu[e]” to protect unborn life in that nation.
The High Court in its 2015 case also argued that there was no “pressing social need” for Northern Ireland’s abortion law, according to the judicial test established in S. and Marper v. U.K. for testing the validity of abridgements of Article 8 rights. Under the four-part test for determining a “pressing social need,” the High Court claimed that there was no rational relation between Northern Ireland’s law and reducing the incidence of abortion. The court also argued that the nation’s abortion law did not strike a “fair balance” because unborn children with life-threatening disabilities are unlikely to survive and thus there “is no human life to protect.”
The U.K. Supreme Court disagreed with the lower court to a certain extent, maintaining that Northern Ireland’s abortion law was in fact rationally related to a legitimate aim. But the Supreme Court ruled against Northern Ireland anyway, stipulating that the law did not balance with the autonomy rights of women.
However, the Supreme Court was clearly mistaken in its decision. An unborn child is unquestionably a human being and by virtue of that fact must be accorded the right to life. As a unique person with its own unique DNA, an unborn child’s right to life must be taken into account and must be protected as the life of any other individual would be protected under the laws of Northern Ireland. And as an unborn child with a life-threatening disorder is still alive, it is profoundly unjust and intolerable to purposely end its life prematurely through the violence of abortion. Only if the right to life of the unborn child is protected can an adequate “fair balance” be drawn.
As the margin of appreciation on the legal status of abortion has been afforded to independent jurisdictions under the European Convention, Northern Ireland must be allowed to preserve its legitimate aim to protect the right to life of the unborn child.
 A,B & C v. Ireland, App. No. 25579/05, Eur. Ct. H.R., ¶222 (2010).
 A,B & C v. Ireland, App. No. 25579/05, Eur. Ct. H.R., ¶249 (2010).
 R.R. v. Poland, App. No. 27617/04, Eur. Ct. H.R., ¶187 (2011).
 Vo v. France, App. No. 53924/00, Eur. Ct. H.R., ¶82 (2004).
 R.R. v. Poland, App. No. 27617/04, Eur. Ct. H.R., ¶186 (2011).