Originally appeared in the Guardian on Tuesday 1st December 2015
Should a woman carrying a doomed foetus be required to carry it through to stillbirth? This, surely, is a question that can admit just one answer in any civilised mind. If doctors identify an abnormality that precludes all hope of independent existence, then to demand that a woman press on with the pregnancy is not only a vile intrusion of privacy. It is an affront unbalanced by any intelligible offsetting concern. It is not “unborn life” that is protected here, only the certainty of unborn death down the road.
A Queen's University Pro Choice Society member in Belfast, 2015
How extraordinary, then, that there is a corner of the UK where such a termination is barred. Not only barred, indeed, but subject to arcane criminal law and the threat of life imprisonment. But that is where Northern Ireland’s macho, tribal politics has left things for its women. The only exceptions are where birth would kill the mother or render her, in a narrowly applied test that drips with misogyny, a “physical or mental wreck”. So if women need an abortion, they must first buy a ticket to Britain, and then pay for a private procedure. If they cannot raise the money, then they are fated to await the stillbirth.
Mr Justice Horner’s ruling on how this vicious law fits with human rights is meticulous, but glistens with controlled rage. His emphatic conclusion is that, in both the fatal abnormality case and the case of pregnancy caused by rape, basic rights are breached. It is a timely reminder of the importance of the Human Rights Act, which the constitutional vandals of the Conservative party wish to rip up. This judicial review came to court because of the HRA. And it is also only thanks to the HRA that the judge has the power to order that the relevant criminal legislation be read in new ways – to remove the threat of prosecution in these extreme circumstances. He invited fresh proceedings to that end.
But it will be hard to make even this minimal allowance for termination effective, at least for as long as the politicians continue their traditional lockdown on the abortion question. It is hard to exaggerate the foot-dragging: eight and a half years passed between a 2004 court of appeal ruling and the publication of 2013 official guidelines on those ultra-rare exceptions. The European rights framework will never open up the wider debate needed about reproductive rights for women who have not been raped and whose foetus will survive. Indeed, Judge Horner suspects that Ulster’s bar on terminating non-fatal abnormalities is a legitimate policy choice under the European convention. Nations have wide scope to weigh the interests of the unborn child against the mother, and so there will be no European Roe v Wade.