Abortion law does not stigmatise living disabled persons – Court of Appeal

In R (Crowter) v Secretary of State for Health and Social Care [2022] EWCA Civ 1559, the Court of Appeal considered a challenge to section 1(1)(d) of the Abortion Act 1967. By this provision, abortion is permitted at any point in pregnancy where “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”, assuming two registered medical practitioners have to come to this opinion in good faith. The Divisional Court (Singh LJ and Lieven J) had dismissed the challenge by three claimants who argued that the current law on abortion breaches the human rights of those with Down’s Syndrome.

The claimants (two of whom have Down’s Syndrome and one of whom is a mother of a child with Down’s syndrome) had originally argued that this provision was incompatible with Article 2 (right to life), Article 3 (right to be free from torture, and inhuman and degrading treatment), Article 8 (right to respect for private and family life) and 14 (prohibition of discrimination) insofar as it permits abortion anytime after 24 weeks’ gestation, particularly of the fetuses with Down’s syndrome, many of whom would otherwise go on to live happy and fulfilled lives.

That case having been dismissed, permission to appeal was granted on the sole ground of whether the existence of s.1(1)(d) of the 1967 Act stigmatises living disabled persons in the sense of conveying the message that their lives are of less value, in breach of Articles 8 and 14 ECHR.

The Court of Appeal dismissed the appeal. It found that:

1. There was no interference with Article 8 ECHR. For the majority (Underhill LJ and Thirlwall LJ), s.1(1)(d) of the 1967 Act was not concerned with living disabled persons and did not explicitly promote any negative stereotype about them. The fact that the appellants subjectively perceived the present state of the law as devaluing them was not sufficient – “the interference must derive from something in its terms or its effect which, applying an objective standard, unequivocally conveys that message”: §73 (Underhill LJ). For Peter Jackson LJ, however, it did not matter that the impact on the appellants was indirect. But there was no interference in any event because the impact of the legislation was not sufficiently serious so as to amount to an interference.
2. Alternatively, any interference was “in accordance with the law” for the purposes of Article 8(2) ECHR.
3. Any interference would have been proportionate for the purposes of Article 8(2) ECHR. Parliament was entitled to a wide margin of appreciation on an issue like abortion and the way it had struck the balance was not disproportionate.
4. In relation to Article 14 ECHR, the complaint was not within the ambit of Article 8 ECHR and, if it had been, any difference in treatment would have been justified.

The appellants have applied to the Supreme Court for permission to appeal. Yaaser Vanderman, and Julia Smyth, appeared for the Secretary of State for Health and Social Care.