Friends, Romans, countrymen, lend me your ears.
I come to bury Caesar, not to praise him.
The Supreme Court yesterday disclaimed any intention to intervene in the controversy over Northern Ireland’s abortion law, on the basis that the Northern Ireland Human Rights Commission which had challenged it had no legal standing to do so. Then, with a similar degree of sincerity to the Bard’s Mark Antony, it proceeded to do exactly what it had said it would not. Despite the proceedings being improperly brought, it intervened, and did so big-time, making it clear that technicalities about its power to act did not matter, and that it expected to have its views put into effect by the politicians as soon as possible.
By way of background, Northern Ireland law has never included the Abortion Act 1967 applicable elsewhere in the UK. It essentially limits any abortion, for any reason, to cases where there is a serious threat to the mother’s life or health. This was not good enough, said a majority of their Lordships. In cases of pregnancy through rape or incest, and also where there was a fatal foetal abnormality, there was a human right to termination arising under Article 8 of the European Convention on Human Rights, protecting private and family life (no comment). Two Justices went further, and said – seriously – that refusal of abortion amounted to torture or inhuman and degrading treatment. The only comfort for pro-life supporters was that a majority of the Court rejected a right to abortion in cases of non-fatal abnormality: quite rightly, this was regarded as sitting ill with the protection of the rights of the disabled outside the womb.
This decision, welcomed with open arms by the human rights establishment, tells us a great deal about politics, human rights and the judicial process. It does not make for pleasant reading.
Leaving aside the case of fatal foetal abnormality, where the arguments against abortion are weakest (though by no means inconsiderable), the reasoning in the case of rape and incest was instructive. It all hinged, it was said, on the right to autonomy. Rape was the ultimate denial of this right; to deny the right to abort a pregnancy resulting from it multiplied the wrong. It didn’t particularly worry anyone that a past interference with the mother’s abstract autonomy on one occasion was being used to justify a present, and permanent, interference with the life of a viable and entirely innocent foetus. After all, hadn’t European human rights judges comfortingly denied the life of the unborn any specific protection, and anyway what business had the state to oppose that life to the absolute right to self-determination unless, perhaps, there were unusually strong social attitudes to the contrary?
Incest was more difficult, since (as the court pointed out at para 26 of the report) it might involve consensual relations. But this minor point was also quickly disposed of. Incest (it was airily said) was illegal, and most incestuous relationships were abusive anyway; therefore it could be idly lumped in with infringements of autonomy and unborn children resulting from it treated in the same way.
What about the fact that there were political processes available to introduce changes to the law, and that the European Court had itself in 2011 used this as a reason for not demanding a change to the then even more restrictive Irish law? Surely this meant that the court would not be applying but extending the demands of human rights law? Not a serious problem. The court in 2011 hadn’t been thinking of rape; the Northern Irish people didn’t have the same strong pro-life views as the Irish in 2011; the vote in the Assembly in 2016 against relaxing abortion laws had really been taken for all sorts of other reasons; the UN CEDAW Committee (a body with no power to decide on international law) had come out against the Northern Ireland position; and it was important to take into account an increasing consensus in European countries that Northern Ireland was out of step.
Indeed, Lady Hale went even further. It is pretty apparent from her judgment that she feels impatience with the pro-life view and, even in a case concerning review of abortion legislation, does not care who knows it. Within a page of beginning it she not only makes clear her commitment to a woman’s right to autonomy but quotes, substantially and apparently approvingly, from Judith Thomson’s polemical article ‘A Defense of Abortion’. And on the division of labour between judges and politicians, I will simply quote her verbatim:
‘[T]his is not a matter on which the democratic legislature enjoys a unique competence. It is a matter of fundamental human rights on which, difficult though it is, the courts are as well qualified to judge as is the legislature. In fact, in some ways, the courts may be thought better qualified, because they are able to weigh the evidence, the legal materials, and the arguments in a dispassionate manner, without the external pressures to which legislators may be subject.’
Read this carefully and ponder it. You are of course free, as ever, to draw your own conclusions on the matter.