Last month, when Ireland voted in a landslide referendum to overturn its abortion ban, Prime Minister Leo Varadkar called it the “culmination of a quiet revolution.”
But that revolution has not resulted in any legal change next door in Northern Ireland, where women can still terminate a pregnancy only if it poses a serious risk to their life or health. If one were to perform or receive an illegal abortion, they could face life in prison.
And on Thursday, the United Kingdom's highest court dismissed a bid to overturn Northern Ireland's restrictive measure. The Northern Ireland Human Rights Commission brought the case forward, and the justices voted 4-3, saying the majority opinion was that only an individual harmed by the law would have qualified to challenge it.
“The proceedings were brought in the abstract, without reference to any specific act or individual,” Justice Jonathan H. Mance said on Thursday.
But even if the court declined to take explicit action to overturn the ban this week, a majority of the court's seven justices said they believed Northern Ireland's abortion policy violated the European convention on human rights. Five believed that to be true in cases of fatal fetal abnormality, and four said it was true in cases of rape and incest.
David Russell, chief executive of the commission, said despite the case being dismissed on a technicality, the justices' human rights announcement made it “a victory, a historic landmark for women's rights in Northern Ireland.”
Abortion rights activists hope the court's conclusion will spur the British government to action. Abortion is legal elsewhere in Britain, and many British lawmakers have called for Prime Minister Theresa May to intervene. That' has left her in an awkward position: She is dependent on Northern Ireland's socially conservative Democratic Unionist Party to maintain her position in power. Acting on the abortion question could jeopardize their support for her.
Still, Justice Brian F. Kerr said the justices' announcement on the human rights convention “must be worthy of close consideration by those in whose power it lies to decide whether the law should be altered.”
Kerr said that to require women and girls to carry fetuses to term if the pregnancy “was the consequence of exploitative behavior” does not strike “the right balance between her rights and those of society.”
On Twitter last month, May congratulated Ireland on the outcome of its referendum but did not bring up Northern Ireland.
Her spokeswoman told reporters at the time that she believes the decision is up to Northern Irish lawmakers. But if that's the case, it's not likely anything will happen anytime soon: Punting the decision to Northern Irish lawmakers isn't possible, because its parliament has been deadlocked for more than a year.
The movement toward a referendum in Ireland was prompted in part by the spread of women's personal stories in dealing with the ban there. In 2012, Savita Halappanavar, a dentist, died after doctors in Ireland denied her an abortion as she miscarried, because the fetus still had a heartbeat. By the time they could provide her with an abortion, she had developed an infection that quickly killed her. Had she been in a country with a less restrictive abortion law, she could have sought the procedure much earlier.
Like women in Ireland, women in Northern Ireland have also had to travel from home to seek abortions. And there seems to be support in Northern Ireland for abortion reform.
The Northern Irish Life and Times Survey found last year that about 80 percent of people in Northern Ireland back reforms to the abortion law in cases of rape and incest. About three in four people said the same in cases of fatal fetal abnormalities.
Whether the court's conclusion on Thursday will result in any concrete change remains to be seen.
“The judges made absolutely clear that if a woman was brought forward they would find that our laws are incompatible with human rights,” said Les Allamby, chief commissioner of Northern Ireland Human Rights Commission.
Read more