UK courts ‘becoming abortion activists’
by Roger Kiska, Christian Legal Centre:
A High Court in Belfast recently ruled, in a case brought by Sarah Ewart in her own name, that Northern Ireland’s law protecting the unborn child was incompatible with current human rights obligations in relation to fatal fetal abnormality. Today’s ruling should worry us all as it represents an egregious case of judicial activism. Several points bear analysis:
1. Judicial activism gives birth to even more judicial activism
In June 2018, the Supreme Court issued an odd decision in which it delivered a voluminous opinion on the incompatibility of Northern Ireland’s abortion law with existing human rights law despite finding that the claimants had no standing to bring the claim in the first place. As Lord Reed rightly suggested at paragraph 334 of that judgment, it was highly unusual for the Court, after finding that the Appellant did not have standing to bring the case, to nonetheless draft a 143 page opinion of no-binding force whatsoever saying that they would have found elements of Norther Ireland’s laws on abortion to be incompatible with the Europe Convention on Human Rights. It was that very decision that the lower court in Belfast relied upon in making its findings in last week’s ruling.
More so, the question of the petitioner’s “victim status”, or standing – a threshold question in any legal claim – also smacked of judicial activism. Standing requires the person bringing the claim to demonstrate a sufficient connection to the harm being challenged. In the instant matter, the claimant successfully obtained an abortion within England.
While the court found her testimony compelling when she gave evidence that her experience felt like a conveyor belt, leaving her humiliated, the reality is that this would have been the fault of those who provided the abortion in England and not the doctors in Northern Ireland.
Furthermore, she claimed she was “denied” access to support and information about abortion out of fear of prosecution. This feeling too was wholly subjective as travelling for an abortion in a jurisdiction where it is lawful to procure one is protected under the law. Precisely stated, her testimony was based on feelings rather than any legal truths. Standing should have never been granted in this case.
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