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Mum challenging 'discriminatory' NI law permitting abortion to birth for disability

5 October 2021

A mother is challenging ‘discriminatory’ NI abortion rules which allow abortion up to birth in cases of disability but set a limit of 24 weeks for non-disabled babies.

Rosaleen McElhinney, whose 15-year-old daughter Cara Rose has Down’s Syndrome, argues that Northern Ireland’s abortion framework undermines the worth society places upon disabled lives.

Lawyers acting for Ms McElhinney will present her arguments in Belfast High Court today after intervening in a separate legal challenge brought by pro-life group SPUC.

Legal papers submitted to the High Court by Ms McElhinney’s lawyers state:

“…it is apparent that the protection afforded to unborn babies without disability, namely that they are protected from 24 weeks until birth, is denied to unborn babies with disabilities, whom it is clear could be born and live happy, health and fulfilling lives.

“Such children would also gain an understanding that others like them have been terminated because of their disability and this would significantly impact upon the worth they, and society, place upon their lives.

“It is therefore submitted that the regime established in Section 9 of the 2019 Act, Regulation 7(1)(b) of the 2020 Regulations and the 2021 Regulations is discriminatory against those with disabilities and, in fact, operates to perpetuate stereotypes towards persons with disabilities”.

Ms McElhinney’s case also raises two further, substantive points about the implementation of abortion legislation in Northern Ireland. Her lawyers contend that the imposition of abortion on NI at a time when the Executive was dissolved was unconstitutional.

And they argue that a recent order on the commissioning of abortions ervices by Secretary of State for NI Brandon Lewis was not subject to proper consultation.

Similar arguments about disability discrimination in abortion law were heard in England’s High Court in a case brought by campaigner Heidi Crowter.

The High Court rejected Ms Crowter’s case but it is understood she is seeking permission to appeal to the UK Supreme Court. In an article for the Metro newspaper last week, she outlined her view that British abortion law is discriminatory:

“It is discrimination. I strongly feel the law affects the way people with disabilities view themselves and helps create negative stereotypes. I won’t stop until we are recognised as equal members of society.”

Nola Leach, CEO of CARE, which is supporting Ms McElhinney, commented:

“We are privileged to stand with Rosaleen as she raises substantive points on the controversial NI abortion framework. Rosaleen is especially concerned about the message the new law sends about children with disabilities like her beautiful daughter, Cara Rose.

“In allowing abortion up to birth for disabled babies – far beyond the 24-week limit for other preborn babies – it implies that disabled lives have less value. This regressive and discriminatory policy should have no place in Northern Ireland or any other part of the UK.

“Like other NI citizens, Rosaleen is also alarmed by diktats from UK Government Ministers seeking to bypass the NI devolution settlement. Abortion was imposed on Northern Ireland from afar when its government was in crisis.

"This contempt for devolution would never be shown towards the governments of Scotland or Wales. Legislators in other parts of the UK should be concerned by the precedent set by this kind of intervention.”


Notes for Editors:

For interview requests or more information please contact Jamie Gillies:

Background to NI abortion law

Abortion was legalised in NI in 2019 via an amendment to Westminster legislation – the NI Executive Formation Bill – when the Northern Ireland Executive was not functioning.

Under the new law, abortion is legal for any reason up to 12 weeks, on demand up to 24 weeks, and right top to birth for 'serious disabilities'.

SPUC legal proceedings

NI court hears legal challenge against 'unconstitutional' abortion regulations | CARE

Heidi Crowter case

I'll never stop fighting unfair laws for babies with Down's syndrome | Metro News

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