Judges say any changes to law should be made by executive, even in cases of fatal foetal abnormality and pregnancies caused by rape

Three appeal court judges have refused to legalise abortions in Northern Ireland’s hospitals in cases where women are made pregnant through rape or where pregnancies are doomed due to fatal foetal abnormality.

The ruling in the court of appeal in Belfast also passed on responsibility for any changes to the region’s strict anti-abortion regime to a Stormont assembly that may not exist after Thursday’s devolution deadline.

The 1967 Abortion Act does not extend to Northern Ireland, where abortions are illegal except where the life or mental health of the mother is in danger. Anyone who performs an illegal termination could be jailed for life.



One of the three judges hearing the case, Lord Justice Gillen, said: “Abortion is a classic instance of the type of highly controversial issue touching on social, moral and religious policies on which there is no consensus either in Europe or, for that matter, in this jurisdiction.

“Such an issue requires parliament to be allowed a wide margin of judgment.”



He said the current law provided certainty and accountability and warned against the risk of doing a “disservice” to the cause of justice and potentially infringing on the division of powers between courts and the legislature.



“In deciding whether a fair balance has been struck between the right to respect for private life and the public interest in this jurisdiction in according respect to the moral values in the society as to the nature of life and the need to protect the life of the unborn, these considerations should act as a restraint on the court to the extent that a broad margin of appreciation must be accorded to the state.”



He added: “I consider that a fair balance has been struck by the law as it presently stands until the legislature decides otherwise.”



He said it was not for the court, rather than the legislature, to hasten a further shift in moral standards that may have been unfolding for some time.

Pro-choice campaigners, including one woman who was forced to travel to England for an abortion after a fatal foetal diagnosis, described the decision as a “betrayal” and accused the judges of passing the buck to local politicians who cannot agree among themselves. They are now due to take their case to the supreme court in London.



Amnesty International, meanwhile, said that if direct rule was imposed on the region should talks aimed at restoring the Stormont executive fail then Westminster should vote to legalise abortion in Northern Ireland.

In 2015 a high court judge in Belfast found that the near-total ban on abortion in Northern Ireland breached the European convention on human rights by not allowing for terminations in local hospitals in cases of fatal foetal abnormality or sexual crime.

The Department of Justice and the local attorney general, John Larkin QC, appealed against that ruling.

On Thursday, three judges ruled that any abortion reform was up to the deadlocked, crisis-ridden Stormont assembly. Their decision in effect overturns the judgment 18 months ago of Mr Justice Horner, who agreed at the time that the abortion ban in these cases breached the European convention on human rights.

Last year the Northern Ireland assembly voted by a margin of 59 to 40 votes against allowing for abortion in cases of fatal foetal abnormality.

Sarah Ewart, who was forced to travel to Britain for a termination after a fatal foetal pregnancy diagnosis, said she was “100%” behind moves to challenge Thursday’s ruling in the supreme court. The lord chief justice of Northern Ireland, Sir Declan Morgan – one of three appeal judges – granted her and the Human Rights Commission leave to appeal.

“Please help us and change the law,” Ewart said, in an appeal to local politicians to agree to a deal re-establishing the frozen assembly, and to legislate for abortion reform in the near future.

Breedagh Hughes, the regional director of the Royal College of Midwives, denounced the ruling as “the most blatant example of judicial buck-passing I have ever seen”.

Hughes added: “It’s ironic that this issue has been kicked back to our non-existent assembly to legislate on it.”

Anti-abortion campaigners, however, welcomed the ruling. Liam Gibson, from the Society for the Protection of Unborn Children, described it as a “victory albeit it’s not the end of the battle”.