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Challenge to the abortion act 1967 dismissed
In September, the High Court dismissed a judicial review of the Abortion Act 1967 that sought a judgement of incompatibility with the European Convention on Human Rights (ECHR).1 The case focused on a clause in the Act which permits abortion in England, Scotland and Wales after 24 weeks if there is a substantial risk that, if the child were born, it would suffer from ‘such physical or mental abnormalities as to be seriously handicapped’. The case was brought by three parties: Heidi Crowter, a 24 year old woman living independently with Downs Syndrome (DS) and a campaigner for disability rights; a 2 year old boy with DS; and his mother who, when pregnant with him, felt pressure to terminate the pregnancy.
The claimants sought a declaration that the clause was incompatible with the right to life; freedom from torture, inhuman or degrading treatment; right to private and family life; and protection from discrimination. Further to this it was also argued that the Act does not permit abortion on the basis that an unborn child has been diagnosed with a non-fatal fetal disability such as DS and that such abortions should not be funded by the state.
In dismissing the claim, the judges focused on the ‘margin of appreciation’ that the European law allows domestic states on this issue and the fact that a foetus has never been deemed to have personhood status under the ECHR. The judges noted the ability to provide for a disabled child would vary significantly and that some conditions would only be found late in a pregnancy, after 24 weeks. Stating that the case by its nature did not permit the Court to hear from other perspectives, including women who may be affected by any change to the law and further criminalisation of abortion, the judges emphasised …
Funding The authors have not declared a specific grant for this research from any funding agency in the public, commercial or not-for-profit sectors.
Competing interests None declared.
Provenance and peer review Not commissioned; internally peer reviewed.
↵AB v CD & Ors  EWHC 741 (Fam) (26 March 2021) (bailii.org)
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