Northern Ireland’s chief law officer has questioned whether a Belfast woman who travelled to England for an abortion is eligible to challenge the region’s restrictive laws on terminations.
Sarah Ewart, who sought the procedure across the Irish Sea after receiving a diagnosis of fatal foetal abnormality, has taken a case to Belfast High Court arguing the current law contravenes her human rights.
On the second and final day of the hearing, after which judgment was reserved, legal argument focused on whether Ms Ewart, 28, has the legal standing to seek a judicial declaration that the current regime is incompatible with the European Convention on Human Rights (ECHR).
Attorney General John Larkin QC argued Ms Ewart would currently not be seen as a “victim” of an unlawful act – a prerequisite of a successful legal challenge.
Last year, the Supreme Court ruled that Northern Ireland’s abortion laws were in breach of human rights laws.
However, the court stopped short of making a formal declaration of incompatibility, after concluding that the Northern Ireland Human Rights Commission, which brought the case, did not have the legal standing to bring the proceedings, as it was not itself a “victim” of any unlawful act.
Ms Ewart subsequently launched a fresh legal challenge in her name, arguing that she is such a victim of the law.
Mr Larkin countered that assertion on Thursday, arguing that Ms Ewart was not currently affected by the abortion ban in respect of fatal foetal abnormalities.
As Ms Ewart watched from the public gallery, the attorney general suggested she would have been considered a victim if she had taken the case in the midst of her pregnancy in 2013.
“Had the applicant brought a judicial review challenge in 2013, or civil proceedings complaining about her treatment in 2013, she would have had victim status,” he said.
“That’s not to say she would have been successful, but she would have had victim status.”
Mr Larkin said her current circumstances were different.
“She went through a dreadful experience in 2013 and happily she now has two children,” he told judge Mrs Justice Keegan.
“What is the condition that she wishes to place before you now?”
A fatal foetal abnormality (FFA) diagnosis means doctors believe an unborn child will die either in the womb or shortly after birth.
It is not grounds for a legal abortion in Northern Ireland. The procedure is allowed if the mother’s life is in danger.
Ms Ewart’s barrister Adam Straw rejected the argument put forward by Mr Larkin.
Mr Straw said the current law was having an “ongoing impact” on his client, highlighting that she was delaying having any more children due to fears of reliving her previous ordeal.
“She has put a hold on her wish to have further children because of concern about the trauma of 2013 happening again in the future,” he said.
The barrister also rejected an assertion by Mr Larkin that the UN Convention on the Rights of Persons With Disabilities provided a basis for ruling out any law change.
On the first day of the case, a lawyer for Northern Ireland’s departments of justice and health, insisted local ministers had taken action on the issue prior to the collapse of the Stormont Assembly.
Dr Tony McGlennan QC noted that a working group of experts had been set up to examine instances of fatal foetal abnormality and subsequently recommended a law change.
He said further steps would have been taken if the powersharing institutions had not imploded in January 2017.
Responding on Thursday, Mr Straw insisted there was no certainty on when, or if, politicians would move to change the law in Northern Ireland.
He said the court was obliged to rule on the issue because the Assembly was not “actively” considering it.
“If this case, to use a colloquial term, is kicked into the long grass that will see, on any reading, a considerable delay before anything is done on it,” he said.
“The fact we have a working group report is irrelevant, that’s still no assurance as to when or even if a Northern Ireland Assembly will resume its activities.”
Both pro-choice and anti-abortion campaigners attended the final day of the case.
An Amnesty International representative supported Ms Ewart and her mother Jane, while members of anti-abortion group Precious Life sat elsewhere in the courtroom.
Reserving judgment, Mrs Justice Keegan said the lawyers had left her with “a lot to think about”.