Heidi Crowter and Anor, R (on the application of) v The Secretary of State for Health and Social Care

This appeal concerned whether section 1(1)(d) of the Abortion Act 1967 (as amended) which permits termination at any stage where there is a substantial risk that the child, if born, would be seriously handicapped, breaches Convention rights of people born with serious disabilities. The appellants sought a declaration of incompatibility under section 4 of the Human Rights Act 1998 relying chiefly on Articles 8 and 14 ECHR.

The Court of Appeal held that (i) the subsection does not amount to an interference with the appellants' Article 8 right to respect for private life because the provision is concerned with the unborn and does not unequivocally promulgate the kind of negative stereotyping about the living disabled that the Strasbourg cases (for example Aksu and Lewit) address; (ii) even if Article 8 were engaged, the statutory language met the Article 8(2) requirement of being "in accordance with the law" in context and medical practice, and the breadth of terms such as "substantial risk" and "serious handicap" was not fatal; and (iii) the provision is, in any event, a proportionate exercise of Parliament's judgment in a sensitive area and falls within a wide margin of appreciation. The Article 14 complaint failed because no Article 8 interference was established and proportionality would be the same for Article 14.

This is an appeal from the Divisional Court ([2021] EWHC 2536 (Admin)) in a judicial review claim by Mrs Heidi Crowter and on behalf of Aidan Lea-Wilson (by his mother) seeking a declaration under section 4 of the Human Rights Act 1998 that section 1(1)(d) of the Abortion Act 1967 is incompatible with Articles 2, 3, 8 and 14 of the European Convention on Human Rights. Permission to appeal was limited to Articles 8 and 14.

Background and parties:

• The statutory provision at issue, section 1(1)(d) of the Abortion Act 1967 (as amended), permits termination at any stage where two registered medical practitioners in good faith consider there is a "substantial risk" that the child, if born, would be "seriously handicapped". The 1990 Human Fertilisation and Embryology Act amendments lowered the general gestational limit to 24 weeks but removed the limit for subsection (d).
• The appellants are people with Down's syndrome (Mrs Crowter and Aidan, through his mother). They argued the provision "perpetuates and reinforces" negative cultural stereotypes that disabled lives are less valuable, thereby infringing Article 8 (direct impact on identity and dignity and societal impact leading to discrimination) and Article 14.
• The respondent was the Secretary of State for Health and Social Care. The Divisional Court dismissed the claim and the Court of Appeal heard the appeal.

Procedural posture: The claim began in June 2020. The Divisional Court dismissed it on 23 September 2021. The Court of Appeal granted permission limited to Articles 8 and 14 and heard argument on 13 July 2022; judgment was handed down 25 November 2022.

Issues before the Court:

1. Whether section 1(1)(d) interferes with Article 8 rights of persons born with serious disabilities (including direct impact on dignity and identity and societal impact);
2. If so, whether any interference is "in accordance with the law" under Article 8(2);
3. If so, whether the interference is justified/proportionate (including margin of appreciation and deference to Parliament); and
4. Whether Article 14 is engaged by a difference of treatment within the ambit of Convention rights.

Court's reasoning and conclusions:

• On Article 8 interference the Court accepted the sincerity and reasonableness of the appellants' perception that the law conveys a devaluing message, but concluded that the legal test for interference requires an objective demonstration that a measure "unequivocally" promulgates negative stereotyping of the kind addressed in Strasbourg authority. Section 1(1)(d) is directed at the unborn and does not itself directly or unequivocally denigrate the living disabled. Allowing subjective perception alone to constitute interference would have undesirable consequences for public decision-making and debate.
• On the "in accordance with the law" requirement the Court (agreeing with the Divisional Court and relying on authorities such as Bridges and Bright) held that the statutory phrases (for example "substantial risk" and "serious handicap") are sufficiently certain in context, given the medical and professional setting, the role of clinical judgement and established professional guidance, and that absolute definitional precision is not required.
• On justification the Court applied the four-stage proportionality test, emphasised the wide margin of appreciation afforded to Parliament in sensitive ethical matters, found legitimate aims (protection of rights and health of pregnant women) and concluded Parliament's choice to permit late abortion on grounds of serious disability was within that margin and proportionate. The Court noted international materials and Strasbourg jurisprudence but regarded the matter as one for democratic judgment.
• Because Article 8 interference was not established, the Article 14 complaint failed; and even if Article 8 had been engaged the proportionality analysis would have been the same for Article 14.

The Court dismissed the appeal and refused the declaration of incompatibility.

Appeal dismissed. The Court held that section 1(1)(d) of the Abortion Act 1967 does not amount to an interference with the Article 8 rights of people born with serious disabilities because the provision is concerned with the unborn and does not unequivocally promulgate negative stereotyping of the living disabled; further, the provision is sufficiently "in accordance with the law" in context and is a proportionate exercise of Parliament's judgment within a wide margin of appreciation. The Article 14 complaint likewise failed.

This appeal came from the Divisional Court (Singh LJ and Lieven J) which dismissed the claim: [2021] EWHC 2536 (Admin). Permission to appeal to the Court of Appeal was granted orally on 11 March 2022 by Peter Jackson and Nicola Davies LJJ limited to Articles 8 and 14. The Court of Appeal delivered judgment at [2022] EWCA Civ 1559, dismissing the appeal.