Human rights campaigners have lost a Supreme Court appeal over the legality of Northern Ireland’s abortion law.
The court dismissed an appeal brought by the Northern Ireland Human Rights Commission (NIHRC).
But a majority of judges said the existing law was incompatible with human rights law in cases of fatal foetal abnormality and sexual crime.
Unlike other parts of the UK, the 1967 Abortion Act does not extend 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.
The commission lost on the issue of whether they had the required standing to bring the case, and analysts suggest the defeat came because of a technical legal point.
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.
A fatal foetal abnormality diagnosis means doctors believe an unborn child has a terminal condition and will die in the womb or shortly after birth, although anti-abortion campaigners have argued that terminally-ill babies “can and do defy the odds”.
As a result, the judges did not make a formal declaration of incompatibility, which would normally lead to a change in the law.
The ruling comes just weeks after the Republic of Ireland voted decisively in a referendum to reform the country’s strict abortion laws, which had effectively banned all terminations.
The referendum reignited a debate about Northern Ireland’s law, with some calling for reform while others – including the biggest party, the Democratic Unionist Party – remain opposed to changing the law.
The NICHR had argued that the current law subjects women to “inhuman and degrading” treatment, causing “physical and mental torture,” in violation of the European Convention on Human Rights (ECHR).
Lord Kerr said that, by a majority of five to two: “The court has expressed the clear view that the law of Northern Ireland on abortion is incompatible with article 8 of the Convention in relation to cases of fatal foetal abnormality and by a majority of four to three that it is also incompatible with that article in cases of rape and incest”.
He added that while this was not a binding decision, “it must nevertheless be worthy of close consideration by those” who decide the law.
Any change in the law will now be up to the politicians, either in Belfast or Westminster.
Northern Ireland has been without an executive since January 2017, when the governing parties – the DUP and Sinn Féin – split in a bitter row over a flawed green energy scheme.
Prime Minister Theresa May has previously said that a government in Northern Ireland should deal with the issue.
Northern Ireland Secretary Karen Bradley, responding to an urgent question in the House of Commons, said the government is “carefully considering” the judgement.
“The analysis and comments from the court on the issue of incompatibility will be clearly heard by this house and politicians in Northern Ireland,” she said.
Les Allamby, from NIHRC, said it was “disappointed” at the ruling but that it fell to the UK government to change Northern Ireland’s law “without delay”.
Grainne Taggart, from Amnesty International, said the ruling was a “very important and long overdue vindication of women’s rights in Northern Ireland”.
“All eyes are now on Theresa May and her government. She cannot allow women in Northern Ireland to suffer on her watch,” she added.
Fellow campaigner Sarah Ewart said she was “extremely relieved that the court recognised there has been a breach of human rights for women who go through a situation of a fatal foetal abnormality”.
Ms Ewart has campaigned for a change to Northern Ireland’s law in cases of fatal foetal abnormality after she travelled to England for an abortion in 2013 after being told her unborn child would not survive outside the womb.
Peter Lynas, from anti-abortion group Both Lives Matter said he welcomed the ruling and the recognition in the judgement that there is no right to abortion based on serious foetal malformation.
The case is the latest in a long line of legal challenges to Northern Ireland’s abortion law.
Timeline of NI abortion law challenges
- 30 November 2015: A High Court judge in Northern Ireland rules Northern Ireland’s law breached the European Convention on Human Rights in cases of fatal foetal abnormality or sexual crime
- 11 February 2016: Members of the Northern Ireland Assembly vote against legalising abortion in cases of fatal foetal abnormality (by 59 votes to 40) and cases of sexual crime (by 64 votes to 30)
- 14 June 2017: Supreme Court rejects an appeal by an anonymous mother and daughter that NI women should be able to access free NHS abortions in England.
- 29 June 2017: Northern Ireland’s Department of Justice (DoJ) and Attorney General successfully appeal against 2015 High Court human rights ruling, prompting the NIHRC to go to the Supreme Court
- 29 June 2017: The government announces women from Northern Ireland will be entitled to free NHS abortions in England, after a Labour-led campaign
- 25 October 2017: Supreme Court considers appeal that argues Northern Ireland law is incompatible with international human rights
Figures released on Thursday morning show that 919 women travelled from Northern Ireland to England for an abortion last year, a rise from 724 in 2016.
By Marie-Louise Connolly, BBC News NI health correspondent
What a bizarre set of circumstances.
On the one hand, the case was dismissed while, on the other, a majority of Supreme Court judges said that Northern Ireland’s abortion law is not compatible with human rights.
So where does that leave Northern Ireland?
While the case’s dismissal means the government is not obliged to change the law, the seven judges have given a strong nod that reform is needed.
Is this a victory for those who want change? They would argue so, because a majority of judges said the state of the law is “deeply unsatisfactory”. Those are significant words.
However, those who argue the law should stay the same will take comfort that the majority of judges agreed the NIHRC didn’t have the right to bring the case.
While a clear-cut decision would have been welcomed, that hasn’t happened. For those at the heart of this – women and medics – the dilemma remains.