The law stays, but the judges' arguments leave grave cause for concern
Until yesterday, Northern Ireland alone in the United Kingdom retained a commitment to limits on abortion roughly compatible with Catholic doctrine (even though ironically the strongest support came from the DUP; Sinn Fein, with its largely Catholic voter base, officially disagreed with it).
On Thursday the Supreme Court formally declined to interfere, on procedural grounds of mind-numbing dreariness. Having said this, it then did interfere, and did so in spades. A majority made no bones about its view that the prohibition on abortion in cases of rape, incest and fatal foetal abnormality infringed the rights of pregnant women to private and family life under Article 8 of the ECHR. The President of the court indeed left little doubt of her own personal impatience with the pro-life position generally; furthermore Lord Mance, speaking for the majority, said that even though the court had no jurisdiction to intervene, he expected its view to be given effect as soon as possible.
This decision contains one crumb of comfort. On the basis of disabled equality, the court did not demand the availability of a termination on grounds of non-fatal abnormality. We must no doubt be thankful for small mercies. Elsewhere there is little to be joyful about. Two comments, in particular, are worth making.
For one thing, with pregnancy due to rape and incest it is all very well for the court to stress, as it did, the interference with the autonomy of the mother, which in the case of rape is absolutely horrific (though less so in the case of incest). But past interference with the mother’s abstract autonomy, while it demands our greatest help and sympathy, is hardly justification for present interference with the life of a viable and entirely innocent foetus. The arguments advanced in the case for downplaying the latter – that the European Convention on Human Rights does not regard the unborn as a person, and (incredibly, by two Justices) that the value of the unborn child is not inherent but contingent on actual social attitudes – are, to say the least, hardly convincing.
Perhaps more importantly, anyone not steeped in human rights law might think this whole scenario a peculiar application of it. The idea of human rights is, after all, that these are special rights regarded as so important that states, and their the ordinary political processes, cannot be trusted with dealing with them.
Whatever you may think of the morality of the matter, bear in mind the import of what we have just been told by our Supreme Court – not simply that abortion ought to be allowed in cases of rape, incest, and so on, but that any state which does not permit it deserves to be excluded from the community of civilised nations.
Many, to say the least, will find this view singularly hard to swallow.