State loses case on woman's abortion right


THE EUROPEAN Court of Human Rights has ruled that the Irish State violated the rights of a woman with cancer who says she was forced to travel abroad to get an abortion.

In its ruling yesterday, the court unanimously found that the State failed to properly implement the constitutional right to a lawful abortion where a mother’s life is at risk. The woman – known only as C – had a rare form of cancer and feared she would relapse when she became unintentionally pregnant.

However, the woman said she was unable to find a doctor willing to make a determination as to whether her life would be at risk if she continued to term.

The court ruled that neither medical nor litigation options constituted “effective or accessible procedures” for the woman to establish a lawful abortion.

“Moreover, there was no explanation why the existing constitutional right had not been implemented to date. Consequently, the court concluded that Ireland had breached the third applicant’s [C] – right to respect for her private life given the failure to implement the existing constitutional right to a lawful abortion in Ireland.”

The court ruled there had been no violation of the rights of A and B, the two other women involved in the case.

They argued that abortion restrictions had stigmatised and humiliated them, risked damaging their health and violated their right to private life. The court ruled by 11 votes to six that there had been no violation of their rights.

In the case of C, the court ruled there had been a violation of her right to private and family life and held that the Irish State pay her €15,000 in damages.

The court found that any risk to her life clearly constituted “fundamental values and essential aspects” of her right to respect for her private life.

It went on to find that the only non-judicial means to determine the risk to her life was by consulting a doctor. However, it said this was ineffective.

“The uncertainty surrounding such a process was such that it was evident that the criminal provisions of the 1861 Act [the Offences Against the Person Act of 1861] constituted a chilling factor for women and doctors, as they both ran the risk of a serious criminal conviction and imprisonment if an initial doctor’s opinion was later found to be against the Constitution.”

The court also found that access to the courts was not appropriate for deciding whether a woman had the right to a lawful abortion where there was a threat to her life.

“It is unclear how the courts were to enforce any mandatory order requiring doctors to carry out an abortion, given the lack of clear information from the Government to the court as regards lawful abortions currently carried out in Ireland,” the court ruled.

It said the “uncertainty generated by the lack of legislative implementation . . . has resulted in a striking discordance between the theoretical right to a lawful abortion in Ireland . . . and the reality of its practical implementation”.

The Government had not explained its failure despite numerous reports and discussion papers on the issue since 1992. A number of official reports in Ireland had recognised that legal clarity was required around lawful abortions, the court noted, yet no agreement had been reached on any reform, legislation or referendums.

“[This] confirmed to the court that no legislative reform was envisaged to implement lawful abortions.”

It acknowledged that properly implementing the right to lawful abortion could be a “sensitive and complex” task for the Government, but it could not be considered to involve “significant detriment to the Irish public” since it would amount to “rendering defective a right already accorded”.

In relation to A and B, the six judges who dissented said the rights of the two women had, in fact, been violated.

They said there was a European consensus in favour of broader access to abortion than is available in the Republic of Ireland. They said the women would have been able to lawfully have an abortion in at least 35 European states.

The dissenting judges added that the court’s decision to disregard this European consensus on the basis of “profound moral views” of the Irish people was incorrect.

“. . . to consider that this can override the European consensus, which tends in a completely different direction, is a real and dangerous new departure in the court’s case law.”

Ms Justice Mary Finlay Geoghegan, one of the 11 judges to determine that the two women’s rights had not been violated, concurred.

While she agreed with all the decisions and most of the reasoning behind them, the consensus regarding other states’ positions on abortion was not relevant.

There was not, as she saw it, a consensus on the key issue of the balance to be struck between the competing issues of the “women’s right to respect for their private lives and a legitimate aim of a recognised public interest in protecting a right to life of the unborn”.

In respect of A and B, the court ruled that the existing prohibition on abortion in Ireland struck a “fair balance” between the right of the applicants to respect of their private lives and the rights of the unborn.

As a signatory to the European Convention on Human Rights – now incorporated into Irish law – the Government is obliged to remedy any breaches of the convention.

The court’s ruling is binding and the Government will now need to remedy the breach of rights of C. It did not specify how the Government should do this, except that accessible and effective procedures were necessary.

The Strasbourg-based court, which is separate from the EU, adjudicates on human rights issues among all 47 member states of the Council of Europe.

In December last year, the Government robustly defended the State’s positions and argued that Ireland’s abortion laws were based on “profound moral values deeply embedded in Irish society”.

Attorney General Paul Gallagher argued that the European Convention on Human Rights had consistently recognised the traditions of different countries regarding the rights of unborn children.