There appears to be very little public and moral furore over the question of the legality of abortion in the United Kingdom compared to the position abortion takes in the public debate in, say, the United States of America. Yet despite this the legal position of abortion is markedly different in both countries. In the United States, there is a constitutional right to abortion. Contrastingly, in the United Kingdom abortion remains a criminal offence. Instead, abortion has been decriminalized in certain therapeutic situations and circumstances, as expounded by the Abortion Act 1967. However, the 1967 Act applies only to England, Wales and Scotland. It did not extend to Northern Ireland. Given the nature of the polity of the UK, there exist today three separate legal regimes for abortion – England and Wales, Scotland and Northern Ireland. Writing in 1985, Madeleine Simms argued that “the 1967 Abortion Act was a half-way house. It handed the abortion decision to the medical profession. The next stage is to hand this very personal decision to the woman herself” (Simms 1985: 94). Despite this, the half-way house remains the governing statute in Great Britain, and Northern Irish abortion law is still governed by a Victorian statute, the Offences Against the Person Act 1861 (OAPA). Recent events, however, have placed renewed focus on Northern Irish abortion law. In February 2018, the UN Committee on the Elimination of Discrimination against Women (CEDAW) released a report stating that: [T]housands of women and girls in Northern Ireland are subjected to grave and systematic violations of rights through being compelled to either travel outside Northern Ireland to procure a legal abortion or to carry their pregnancy to term (UN CEDAW 2018). On 25 May 2018, Ireland held a referendum on the Thirty-Six Amendment to the Constitution Bill 2018, which completed its passage through the Oireachtas, the Parliament of Ireland, in March 2018. Under Articles 46 and 47 of the Irish Constitution the Constitution can be amended by way of a Bill which is passed by both houses of the Oireachtas, and then put to the Irish people in a referendum. If the referendum is successful then the Bill is signed into law by the Irish President. The referendum was successful in May, approved by 66.4% of voters (Referendum Ireland 2018). The Bill sought to replace Article 40.3.3 of the Irish Constitution with the following words: Provision may be made by law for the regulation of termination of pregnancy. The passing of the May 2018 referendum meant that Northern Ireland will have the most restrictive abortion laws in the British Isles. In part due to the Irish Referendum result, on 5 June 2018, the Labour MP Stella Creasy rose in the Commons Chamber to call for the repeal of the relevant sections of the OAPA across the United Kingdom, which make abortion a criminal offence. Such a repeal, if successful, would force both the Westminster Parliament and the Stormont Assembly in Belfast to legislate on the matter of abortion. Then, on 7 June 2018, the United Kingdom’s Supreme Court dismissed an appeal from the Northern Ireland Human Rights Commission (NIHRC) challenging the legality of the abortion law in Northern Ireland, claiming that it was incompatible with Articles 3 and 8 of the European Convention of Human Rights (ECHR). The Supreme Court held by a majority of 4-3 that procedurally, the NIHRC did not have standing to bring proceedings and therefore the Supreme Court has no jurisdiction to make any substantive declaration. Despite this, however, on the substantive issues Lady Hale made clear that a majority (Lord Mance, Lord Kerr, Lord Wilson and Lady Hale) held that the current Northern Irish law was incompatible with the right to respect for private and family life, protected by Article 8 ECHR, “insofar as it prohibits abortion in cases of rape, incest and fatal foetal abnormality”. Lady Black agreed with that holding in the case of fatal foetal abnormality. Lord Kerr and Lord Wilson also held that it is incompatible with the right not to be subjected to inhuman and degrading treatment, guaranteed by Article 3 ECHR. Lady Hale made clear that the “unusual circumstances” of this judgment, it was not possible to follow the Court’s usual practice to identify a single lead judgment which represents the majority view. The Supreme Court decision, alongside the Parliamentary debate, places renewed focus upon the abortion laws of Northern Ireland, as well as those which apply to the rest of Great Britain, which suggests that the ‘half-way house’ of the 1967 Act may finally be close to being reformed to hand the decision of abortion to women themselves.
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