AuthorLady Justice Brenda Hale
From the safe distance of the Supreme Court of the United Kingdom, one
of the most intriguing legal sagas coming out of Ireland has been the recent
history of abortion law both north and south of the border. North of the
border, the law was contained in sections 58 and 59 of the Offences against
the Person Act 1861. This appeared to ban all abortions, but it was
recognized that an abortion might be lawful if it was necessary to save the
life of the mother or to prevent her suffering serious long term or
permanent damage to her physical or mental health. This was interpreted
much more restrictively in Northern Ireland than it had been in England
before the Abortion Act 1967, which does not apply in Northern Ireland.
Health care professionals were warned that they might be prosecuted for
aiding, abetting, counselling or procuring an offence if they even discussed
the options with a pregnant woman. Not only that, the Criminal Law Act
(Northern Ireland) 1967 obliges anyone who knows or believes that an
offence has been committed to report it to the police. These had a “chilling
effect” on women seeking advice, care and after-care.
Their only solution was to travel to Great Britain to take advantage
of the 1967 Act. But the British government refused to allow women from
Northern Ireland to have National Health Service abortions. So they were
put to the expense of private treatment on top of the stress of having to
endure a traumatic experience far from home. A mother and daughter
challenged this policy in judicial review proceedings but lost in the
Supreme Court by a majority of three to two: R (A and B) v Secretary of
State for Health [2017] UKSC 41. However, the story did not end there: the
Scottish government immediately announced that it would allow these
women free abortions and very soon after that the government in England
changed its mind.
Next came a challenge to the law in Northern Ireland: Re Northern
Ireland Human Rights Commission’s Application for Judicial Review [2018]
UKSC 27. The Northern Ireland Human Rights Commission (NIHRC)
brought proceedings seeking a declaration that the law was incompatible
with the rights to respect for private life and to be protected from inhuman
and degrading treatment, contained in articles 8 and 3 of the European
Convention on Human Rights, in failing to permit abortions in cases of
rape, incest, and fatal or serious foetal abnormality. The Supreme Court
decided, by a majority of five to two, that the law was incompatible with

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