In the Matter of an Application by the Society for the Protection of Unborn Children for Judicial Review

[2009] NIQB 92
Download Judgment: English

The law applicable to abortion and medically induced miscarriages in Northern Ireland was a 19th century law (the Offences against the Person Act 1861), which made it a crime to procure a miscarriage. Courts had interpreted this principle to decide that if a person who procured the abortion acted in good faith for the purpose of preserving the life of the mother, no offence was committed. If a doctor with adequate knowledge believed that continuation of the pregnancy would make the women a physical or mental wreck, then abortion could be seen as preserving the life of the mother.

In 2009, the Department of Health, Social Services and Public Safety of Northern Ireland (“Department”) published guidance on its website explaining the existing law relating to termination of pregnancies in Northern Ireland and how it relates to good clinical practice. It also provided guidance on the giving of informed consent, the provision of aftercare services, and rights of conscientious objection. The guidance was published as a result of a previous court decision that blamed the Minister of Health for not providing guidance in this area for doctors, women seeking guidance, and all those who have ancillary roles in terminating pregnancies.

The Society for the Protection of Unborn Children (“Society”) requested that the Court declare the guidance unlawful and to order to the Department to publicly rescind the guidance and remove it from its website or alternatively amend it. According to the Society, the guidance was unlawful for the following reasons: it failed to acknowledge that, as a matter of principle, abortion is illegal in Northern Ireland; it failed to properly recognise the rights of unborn children; it failed to provide guidance on whether a child which may be aborted is capable of being born alive; it wrongly provided for non-directive counselling; it did not contain a provision related to obtaining valid consent for abortion; and it failed to recognise the right of health care professionals to decline to participate in abortion procedures.

The Court ordered the Department to withdraw the guidance from its website and to reconsider the guidance regarding two aspects of the Society’s allegations: counselling and conscientious objection.

First, the Society objected to the provision of the guidance requiring non-directive counselling for women (i.e. no judgment made when information is provided to the women about their alternatives). The Court held that the guidance made clear that termination of pregnancy is only allowed in strictly limited circumstances and that there may be situations where termination can be lawful. Therefore, it is appropriate that counselling should be non-judgmental. However the provisions of the guidance could be clearer for professionals when they need to provide advice to a woman who does not fulfil the criteria for a lawful termination but indicates that she intends to go to Great Britain where abortion is more widely authorised. Therefore the section on counselling needed to be reconsidered.

Second, the Society argued that the guidance did not recognise the right for a professional to refuse to take part in the termination of the pregnancy. The Court held that the guidance was clear that, although there is no statutory right to refuse to take part in the termination, a professional is entitled to refuse on grounds of conscience. The Court required the guidance to be amended to make clear that a professional has a legal right to refuse to take part in a termination. It also ordered that the Guidance be amended to extend the possibility to refuse to take part in the pregnancy on grounds of conscience to a case where the mother’s long term health is in danger (and not only her life).

The Court rejected the Society’s allegation that the guidance failed to acknowledge that abortion was illegal in Northern Ireland. According to the Society, use of the words “termination of pregnancy” was misleading and suggested that women had access to abortion services on demand and that there was a right to have an abortion. The Court held that it was clear in the guidance, when read fairly and dispassionately, that abortion was unlawful except in certain limited circumstances. Section 1.3 of the Guidance provided that “[…] termination of pregnancies are unlawful unless performed in good faith only for the purpose of preserving the life of the woman,” a correct statement of the law. The Court also held that the use of the term “termination” in relation to a pregnancy was a widely accepted substitute for the word “abortion” to avoid ugly connotation.

The Court also rejected the Society’s allegation that the guidance did not mandate sufficient investigation to determine whether a child is capable of being born alive before the abortion. The Court held that this question was not necessary. What matters is whether the termination is necessary to save the woman’s life or to prevent serious or permanent damage to her physical or mental health taking into account the state of development of the foetus.

Rejecting the Society’s allegation that the guidance did not adequately discuss informed consent, the Court held that the guidance incorporated by reference three separate documents dealing specifically with the issue of consent and that the guidance was to be read in conjunction with these separate documents. The indication of the level or degree of detail required in obtaining the consent varies from case to case and was thus not appropriate in the guidance.

Finally, rejecting the Society’s argument that the guidance did not adequately discuss the interests of the unborn child, the Court held that international treaties which are not incorporated in the United Kingdom (such as the Universal Declaration of Human Rights 1948 and the UN Convention on the Rights ofthe Child) cannot confer rights which do not exist under domestic law. The European Convention on Human Rights was incorporated but it leaves the question of the rights of the foetus to be determined by domestic law. Because, under Northern Irish law, the fetus does not have independent separate rights from those of the mother, the guidance did not breach the law on this point.

“[…] in relation to the question whether the continued pregnancy is liable to cause real and serious long term harm to her mental health the clinician must have regard to the state of development of the foetus and the impact of an abortion or continued pregnancy at that stage on the mental and physical state of the mother.” Para. 20.

“The premise of the Society’s argument that the Guidance fails to recognise the rights and interests of the unborn child is that the unborn child has rights and interests independent of the mother and that on occasions the rights and interests of the mother can be overridden to protect the separate rights of the unborn child. The common law does not recognise such independent separate rights and it gives precedence to the rights of the mother. Convention case law to date recognises the validity of a state’s laws having that effect.” Para. 31.