Abortion law: Sarah Ewart begins NI challenge

Image source, Getty Images
Image caption,
Sarah Ewart spoke to the media before the court hearing on Wednesday morning

A woman who is trying to change Northern Ireland's abortion law, with a case based on her personal experience, has begun her High Court challenge.

Sarah Ewart was denied an abortion in 2013, despite doctors saying her baby would not survive outside the womb.

Northern Ireland's abortion law is much stricter than the rest of the UK.

Why is the law different in Northern Ireland?

The 1967 Abortion Act, which liberalised the rules in Great Britain, was never extended to Northern Ireland.

Currently, a termination is only permitted in Northern Ireland if a woman's life is at risk or if there is a risk of permanent and serious damage to her mental or physical health.

Rape, incest or diagnoses of fatal foetal abnormality (FFA) - where medics believe that a baby will die before, during or shortly after birth - are not grounds for a legal abortion in Northern Ireland.

However, anti-abortion campaigners argue that doctors cannot reliably predict the timescale of death and they point to several cases where babies have defied the prognosis and survived into adulthood.

Media caption,
The law on abortion in Northern Ireland explained

Sarah Ewart is an abortion activist from Belfast who has led a high-profile campaign to liberalise the law in cases of fatal foetal abnormality.

In 2013, she was in her early 20s, married and pregnant with her first child.

At her 20-week scan, doctors told her that her unborn child had anencephaly and there was no sign of a skull.

However, as there was no risk to her own life, she was told she would have to continue with the pregnancy until miscarriage.

Ms Ewart travelled to England for an abortion but since then she has campaigned for women to be given access to terminations without having to leave Northern Ireland.

Speaking to reporters outside court on Wednesday, she said she hoped women "who find themselves in the circumstances that I found myself in will get the help and the treatment that we need in our hospitals with our own medical teams".

During the June 2018 case, a majority of Supreme Court judges agreed that Northern Ireland's existing legislation was incompatible with human rights law in cases of fatal foetal abnormality and sexual crime.

However, the judges dismissed the NIHRC's case on a technicality, ruling that the organisation did not have the legal standing to bring such a challenge.

The Supreme Court judges said it would have required the case to have been brought by a woman who was pregnant as a result of sexual crime or who was carrying a foetus with a fatal abnormality.

Ms Ewart later agreed to lead the challenge based on her own experience of a fatal foetal abnormality diagnosis.

She sought a judicial review of Northern Ireland's abortion law in the High Court in Belfast, with the aim of achieving a formal declaration of incompatibility with human rights law.

Image source, PA
Image caption,
Sarah Ewart was accompanied to court by her mother and Grainne Teggart of Amnesty International

Before entering court, Ms Ewart said she was "really hopeful that the High Court listens to what the Supreme Court has previously said".

"This is a medical situation that I found myself in; five years down the line I am reliving the stress and the trauma all over again.

"I should not have to be here, sharing my story again, so I am hoping this time will be the final time through the courts, that we will get the help that we need."

Ms Ewart's legal team argued that the law in Northern Ireland which prohibits abortion in cases of fatal foetal abnormality was in breach of Article 8 of the European Convention of Human Rights.

Her lawyer Adam Straw argued that five out of seven Supreme Court judges finding that the law in cases of FFA was incompatible "should carry great weight".

Mr Straw told the court that the adverse effect on women of having to carry on with a pregnancy in cases of FFA caused "serious trauma to women and also put them at risk of serious harm".

He presented a witness statement from Ms Ewart in which she described her "horror" in finding out about her baby's diagnosis and that the legislation in Northern Ireland denied her a lawful abortion.

"This was a difficult time for her. It left her feeling traumatised, undignified and as if she was on a conveyor belt. The whole process was humiliating."

Image caption,
Anti-abortion campaigners protested outside court

He further outlined what he argued was the negative effect on autonomy.

Ms Ewart's lawyer said the High Court should follow the lead of the majority of the Supreme Court and extend a declaration of incompatibility to the 1861 Offences Against the Person Act and subordinate legislation.

On the issue of standing, Mr Straw told the court Ms Ewart had sufficient interest to bring a judicial review and that she also qualified as a "victim" under human rights legislation.

Appearing for the respondents, the Department of Justice and the Department of Health, Tony McGleenan QC told the court that their long standing position had been to consider the law in cases of FFA.

They had been working on policy development and this, he said, had culminated in the working group report on FFA.

The question, he said, followed "should this court proceed to take steps the Supreme Court could not and did not take regarding a declaration of incompatibility?"

Mr McGleenan told the court the FFA working group report had not been available to the Supreme Court as it had not been published at the time of the hearing.

Image caption,
Sarah Ewart arriving at the Supreme Court in London in June

He argued that further factors to weigh in the balance included that the promulgation of Department of Health guidance of termination of pregnancy in March 2016 would not have been available to the applicant and there is now access to funded NHS provision for the termination of pregnancy for women in Northern Ireland.

He said: "This is not an issue which fits naturally before the High Court. It is an issue which has been before the legislature which debated it in February 2016. The assembly rejected the proposal and mandated a course of action.

"That appears to be the democratically expressed wish of the assembly which the court will no doubt have regard to."

The Northern Ireland Attorney General John Larkin QC also began his submissions during the hearing, which is due to last two days.

The case will hear interventions from the NIHRC, Amnesty International, Humanists UK, the Centre for Reproductive Rights and the anti-abortion campaign group, Precious Life.

Speaking to journalists outside the High Court, Bernie Smyth from Precious Life said her organisation was opposed to any change in Northern Ireland's abortion law.

View from the court

Marie-Louise Connolly, health correspondent

Three women stand out in today's court room.

Sitting in court, flanked by her mum and Amnesty's Grainne Teggart, Sarah Ewart never smiles. Clearly embarrassed when her personal details are relayed publicly, her head drops even lower.

Sitting behind is Bernie Smyth from anti-abortion group Precious Life. She too believes that she is right and that her views on a foetus's right to life should be upheld.

Two women, two arguments and two very different views on justice.

Deciding on whether the law is incompatible is another woman - Mrs Justice Keegan.

All three have a tough job.