The High Court has decided that the parents’ right to terminate pre-born babies with severe foetal abnormalities is not discriminatory.
A judicial review was brought against the government on the basis that the Abortion Act 1967 is incompatible with the European Convention on Human Rights (ECHR).
The court’s approach and rationale can be promptly explained. The Abortion Act does not, it ruled, interfere with the rights under Article 8 or Article 14 of persons with disabilities. Even if it did, this was lawful and objectively justified as proportionate in striking a balance between the rights of pregnant women and those of the foetus.
Further, there is no precedent from the European Court of Human Rights that a foetus has rights under the ECHR. The court also pointed out that member states have themselves ‘resolved the conflicting rights of the foetus and the mother in favour of greater access to abortion’.
But what’s particularly disturbing is what we discover when we consider the previous form of Justice Nathalie Lieven (Lieven J), one of the two judges who issued this ruling.
Lieven J is well-known for her pro-abortion ideology. In 2005, she represented the Family Planning Association in a judicial review, arguing that the notion that parents know best on matters such as sex and abortion was outdated. Under-16-year-olds should be treated without parents knowing.
In 2011, she represented the British Pregnancy Advisory Service in proceedings in which the abortion provider asked the court to relax abortion rules to allow women to self-administer the second dose of a medical abortion at home.
In 2018, Lieven J argued on behalf of the Northern Ireland Human Rights Commission that the region’s abortion laws (as they were then) were to be regarded as torture or inhuman or degrading; and that they discriminated against women.
Then in 2019 came a particularly sinister ruling. Sitting in the Court of Protection, Lieven J ordered that a woman with learning difficulties must have an abortion – against her wishes. She referred in her judgment to a child after birth as ‘a real baby which she will probably have met and touched’, the reasonable assumption from her comment being that she does not consider pre-born babies as ‘real’ babies. Lest there be any room for doubt, she went on to say that ‘the focus must under the law be on a real individual [the woman]’.
The Court of Appeal went on to overturn her ruling on the basis that she had not, as required, considered both the wishes and feelings of the woman.
This brings us back to this latest ruling, which is heading to the Court of Appeal. We wait to see what the appeal judges’ approach will be.
As Lady Hale acknowledged in her NIHRC ruling, abortion raises ‘questions of moral judgment on which views will vary from … judge to judge’.
As Christians who believe the clear Scriptural teaching of the sanctity of life from conception, we should bring pressure to bear on politicians and government to change the law. Under the Abortion Act, Parliament has granted women a greater choice that eclipses the rights of the unborn – we are the only voice they have.
