Reading narratives of privilege and paternalism: the limited utility of human rights law on the journey to reform Northern Irish abortion law
In my article, Reading narratives of privilege and paternalism: the limited utility of human rights law on the journey to reform Northern Irish abortion law, I focus on reproductive rights and consider the limited success of human rights litigation in securing access to abortion in Northern Ireland. I argue that, despite great strides and acceptance of the message that women’s rights are human rights, it is still difficult to litigate women’s rights concerns using the existing human rights framework. I argue that this is because the law remains welded to the traditional liberal notion that core human rights protections should protect traditional public sphere activity that has generally been coded as male. This means that it is easier to conceptualise certain acts as human rights violations, while those that tend to affect women are not considered to fit within this historical and romanticised understanding of human rights. The article therefore highlights that, despite an acceptance that wider issues can fall within the human rights framework, utilising the Human Rights Act 1998 in court has done little to secure workable access to abortion in Northern Ireland.
The article was born out of a series of discussions arising at events celebrating 50 years of the Abortion Act 1967. I discussed the future of abortion rights with activists from around the United Kingdom (UK), particularly in light of the devolution of abortion law. Many activists were frustrated that previous legal challenges had done little to advance access to abortion for the majority of women in Northern Ireland. Yet, at the time, many were optimistic that human rights law would help advance abortion access in Northern Ireland due to anticipation over two important Supreme Court judgments on access to abortion in Northern Ireland.
The first of these was R (on the application of A and B) v Secretary of State for Health  UKSC 41. This case challenged the UK Government’s decision not to fund National Health Service (NHS) abortions for Northern Irish women and pregnant people who travelled to mainland Britain to have an abortion. The majority of the judges were sympathetic to the women involved, but appeared to conceptualise abortion as an elective procedure rather than routine reproductive healthcare. There was also a failure to consider that abortion was a particularly gendered procedure and therefore was not easily compared with other medical procedures. A majority of the judges in the Supreme Court found that the Secretary of State for Health was correct to refuse funding. They stated that this was to preserve the devolution settlement and show respect to the will of the Northern Irish Assembly and Northern Irish law, which criminalised abortion except in very limited circumstances. My article argues that, in reaching their decision, the judges appeared swayed by stereotypes and assumptions about abortion that meant there was an acceptance that abortion should not be easy or accessible, especially for Northern Irish women and pregnant people. I unpick these assumptions and highlight the flawed logic utilised by the majority of the judges, particularly in deciding that affording respect to devolution was more important than securing access to healthcare. I also highlight how the judges’ easy dismissal of human rights arguments and their inability to situate the pain, trauma and suffering the victim endured as a human rights violation is problematic.
The second Supreme Court case was In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland)  UKSC 27. This was a much-anticipated case brought by the Northern Irish Human Rights Commission. The Commission challenged the lack of abortion access in Northern Ireland and argued that the legislation criminalising abortion was not compliant with the European Convention on Human Rights (ECHR) as it made no provision for rape, incest, fatal foetal abnormality or severe malformation of the foetus. It was hoped by many that the Supreme Court would issue a declaration of incompatibility and pressure both the UK Government and Stormont administration to act. Instead, the Supreme Court found that the Northern Irish Human Rights Commission did not have standing to bring the case, and so the challenge failed. In an unusual move the court still gave an obiter judgment on the merits, stating that the lack of provision of abortion for victims of sexual crime (rape and incest) or where there was a fatal foetal abnormality, was a breach of article 8 of the ECHR. While this judgment was celebrated for acknowledging that lack of access to abortion could be a human rights violation, the decision on standing meant that there was no declaration of incompatibility and so no actual remedy.
I argue that these cases were a missed opportunity for the Supreme Court and that, given the wider ECHR jurisprudence is quite clear that lack of abortion access can be a human rights violation, the court took an unusually conservative approach to the issue of standing. I also highlight how, despite being at pains to afford sympathy to the women who gave evidence, the court did not fully situate access to abortion as a core human right, particularly as there was a real reluctance to even consider whether the suffering and trauma that was experienced could engage article 3.
The article posits that the reason for this is the continued framing of abortion in the UK as a paternalistic privilege permitted to women only in limited scenarios and locations. It demonstrates how the Supreme Court implicitly endorsed this framing and consequently excluded women’s victimhood from the human rights framework.
In the wake of both judgments, public opinion and media pressure meant that members of Parliament (MPs) were minded to act. Despite the Supreme Court finding that there was no wrongdoing to deny funded abortions to Northern Irish women and pregnant people, the Government quickly reversed its decision and agreed to fund NHS abortions. Similarly, despite the fact that the court did not grant a declaration of incompatibility, a group of cross-party MPs were willing to work together to amend the Offences Against the Persons Act, effectively decriminalising abortion in Northern Ireland and, supposedly, ushering in an era of effective access to abortion for Northern Irish women and pregnant people. While these changes in the law are welcome and have brought about tangible benefits, my article questions why victims were not able to secure these victories in the courts given the existing jurisprudence that acknowledged that lack of access to abortion can engage both article 8 and article 3 of the ECHR and does meet the threshold to be considered a violation.
My article argues that abortion in the UK has traditionally been understood as a privileged exception from criminalisation and such framing is exceptionally difficult to dislodge. While international and European human rights law has long been promoted as a vehicle for reforming the restrictive abortion regime in Northern Ireland, this rights-based approach has been slow to penetrate the traditional liberal construction of human rights that consequently excludes women’s trauma from being understood as a core rights issue.
My article concludes that there is an indeterminacy to women’s rights because, even when the tools of domestic and international human rights regimes are being utilised to enforce them, such claims based on reproductive autonomy, dignity, privacy and respect do not invite the full protection of the law because they do not fit the paradigmatic rights violation narrative. It posits that the dominant discourse in the UK has successfully framed abortion as an indeterminate privilege restricted to mainland Britain, rather than an unfettered legal right. Thus, the UK deprioritises women’s rights by categorising abortion as a privilege only to be bestowed when the cultural and political hegemony allow, and this framing has proven impervious to human rights challenges because the courts have been unable or unwilling to situate women’s experience of abortion prohibition as a core human rights violation.
 It was argued that s 58 and s 59 of the Offences Against the Persons Act and the Criminal Justice (Northern Ireland) Act 1945 violated articles 3, 8 and 14 of the ECHR.