Debevoise & Plimpton LLP has represented the Center for Reproductive Rights in its successful intervention in judicial review proceedings before the Northern Irish High Court, concerning Article 8 of the European Convention on Human Rights.

In its judgment, the High Court found in favour of Sarah Ewart, who claimed that her right to private life, as enshrined in Article 8 of the European Convention on Human Rights, was violated in 2013 when she was prohibited from accessing abortion care in Northern Ireland following a diagnosis of fatal fetal impairment during her pregnancy. Northern Ireland's abortion law is one of the most restrictive in Europe. Abortion is prohibited in almost all circumstances and is a serious criminal offence. While women in England, Scotland and Wales can access abortion on broad socio-economic grounds, those in Northern Ireland face the threat of imprisonment for seeking a termination—even in instances of rape or fatal fetal impairment. As a result, over 1000 women from Northern Ireland travelled to England or Wales in 2018 to access legal abortion care.

This judgment follows the adoption of legislative provisions by the UK Parliament on 9 July 2019 calling for the reform of Northern Irish abortion law. Following the adoption of those legislative amendments, a moratorium on the criminalization of abortion in Northern Ireland is slated to enter into force on 21 October 2019 and legislative reform to repeal laws criminalizing abortion in Northern Ireland is foreseen for early 2020.

The Debevoise team representing the Center for Reproductive Rights in its intervention during this case was led by Lord Goldsmith QC, partner Samantha Rowe and associate Mark McCloskey.

The judgment follows on from a 2018 decision of the UK Supreme Court concerning the Northern Ireland Human Rights Commission’s challenge to Northern Ireland’s criminal laws on abortion. Debevoise also represented the Center for Reproductive Rights in its successful intervention in that case.

In June 2018, the Supreme Court held (by a majority) that the current law prohibiting abortion in Northern Ireland is contrary to human rights. Specifically, the Supreme Court held that sections 58 and 59 of the Offences Against the Person Act 1861 and section 25(1) of the Criminal Justice Act (NI) are disproportionate and breach Article 8 of the European Convention on Human Rights to the extent that they deny a lawful abortion to a woman who wishes it in cases of rape, incest or fatal fetal abnormality.

The Supreme Court, however, found that it was unable to issue a declaration of incompatibility under the Human Rights Act because of its separate majority finding that the Human Rights Commission did not have standing to challenge the relevant legislation in general terms without there being a specific victim bringing the proceedings. Despite this finding, the Court emphasised in its delivery of the judgment that the views of the majority on the Article 8 breach were “of cardinal importance”. Following this decision, Sarah Ewart brought the judicial review proceedings in Northern Ireland.

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