This is a very timely commentary as it is likely that the judgement will be cited by pro-abortion organisations and politicians in the lead up to the coming general election.
Why the Horner judgement cannot be used to change the law in the Republic of Ireland.
The salient points of Liam's commentary are included below.
1. The ruling by Mr Justice Horner that abortion laws in Northern Ireland are incompatible with the European Convention was not based on his interpretation of the Convention. Instead he claimed that the Northern Ireland law, unlike the law in the Republic, does not recognise the right to life of the unborn child. (This claim is untrue but was based entirely on UK law. Not only can his judgement not apply to the Republic, he actually set out to use the law in the South to undermine the law in the Six Counties.)
2. He acknowledged that the Strasbourg Court of Human Rights did not find the Republic’s law, which prohibits abortion on grounds of fatal anomaly and rape, to be incompatible with the Convention. (In A B & C v Ireland the court said that C had been prevented from obtaining an abortion that would have been lawful because her life was threatened and therefore her rights were violated.)
3. Horner cited various English cases, including Paton v UK and Re MB, to claim that unlike the Republic, under English law the foetus had no right to life. He then claimed that the situation in Northern Ireland was the same as England by pretending that the absence of the Abortion Act in Northern Ireland made no difference.
4. He explicitly pointed to the differences between the law in the Republic and the North:
- The Eighth Amendment recognised the right to life before birth with the purpose of preventing the legalisation of abortion;
- The Eighth Amendment was adopted by popular vote;
- As Strasbourg said in Open Door v Ireland, it was based on the profound moral views of the Irish people on the nature of life;
- No one knows what the people of the North think about the subject. (He was either ignorant of or disregarded the public consultation which took place less than12 months earlier which overwhelmingly rejected a change in the law.)
6. Mr Justice Horner did not claim that the Convention recognises a human right to abortion so the Republic does not have to change its law. He acknowledged that Art 40.3.3 prevents the legalisation in the Republic of abortion on the grounds he dealt with and that this is entirely compatible with human rights. The Horner judgement only confirms the importance of the Eighth Amendment and pro-lifers must fight to keep it in the Constitution.
The full text of the commentary can be provided. Please contact Patrick Buckley on the following e-mail address. firstname.lastname@example.org