Legislating on abortion can no longer be evaded
ANALYSIS:The European Court of Human Rights is the latest in a long line of judicial powers telling the Government there is a constitutional imperative to legislate for abortion where the life of the mother is threatened, writes CAROL COULTER
ALL SIDES of the abortion debate can take some comfort from yesterday’s majority ruling of the European Court of Human Rights. Those opposed to abortion in all circumstances can breathe a sigh of relief that the status quo under the Constitution is preserved, and the only exception to an absolute prohibition on abortion is where the life of the mother is in danger – as was ruled in the X case 18 years ago. That case concerned a 14-year-old rape victim who was suicidal and sought an abortion in Britain.
Those who favour a relaxation of the prohibition will welcome the clear statement that Ireland must legislate to provide for abortion in accordance with that ruling, which included a probable threat to the life of the mother from suicide.
This is hardly new. In 1992, giving judgment in the X case, the then chief justice, Mr Justice Finlay, deplored the fact that, since the enactment of the constitutional amendment in 1983, the government had failed to legislate to bridge the gap between the absolute prohibition on abortion contained in the 1861 Offences Against the Person Act and the “life of the mother” exception contained in the 1983 amendment.
The eighth amendment to the Constitution which came into force in October 1983 as Article 40.3.3, states: “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”
In its judgment yesterday, the majority of the European Court of Human Rights ruled that the lack of any provision for legal abortion in line with Article 40.3.3 and the judgment in the X case contravened the rights of a pregnant woman, Ms C, who feared for her life following a cancer diagnosis, and who felt forced to go to England for an abortion.
It found that the lack of provision for abortion in Ireland for two other pregnant women, Ms A and Ms B – one who feared she had an ectopic pregnancy, and the other who feared her pregnancy would jeopardise her ability to get her other children out of foster care – did not violate their rights and fell within the right of the Irish State to protect morals.
The European court was very firm in its rejection of the cases of Ms A and Ms B. It said the fact the State permitted them to travel for abortion on such grounds, while maintaining its domestic prohibition, was sufficient to meet their rights while preserving the State’s legitimate aim of the protection of morals.
This effectively closes the door to any further challenge to Ireland’s abortion regime on the grounds of the health and wellbeing of the mother, leaving the focus on legislating for abortion where the mother’s life is in danger, including from the threat of suicide.
There is another option, which will be campaigned for in the weeks ahead – the holding of a referendum to reverse the effect of the X case. Senator Ronan Mullen made such a call yesterday, and he is not alone in expressing the view that the threat of suicide should be removed as a possible ground for abortion.
However, the proponents of this option must contend with the fact that two previous attempts to bring in a more restrictive constitutional amendment failed when put to a vote, and there is no political appetite from any quarter to initiate a third attempt.
Yesterday’s human rights court ruling in the case of the third applicant, who claimed her rights were infringed when she could not access an abortion in Ireland despite her fear for her life due to a cancer diagnosis, is very clear. Ireland must legislate in accordance with its own Supreme Court’s interpretation of Article 40.3.3 in 1992.
This interpretation was to the effect that, forced to choose between the right to life of the unborn child and the “equal right to life” of the mother, the court came down on the side of the mother when there was an imminent threat to her life, which in the X case was through suicide.
The chances of the Irish State ignoring the court ruling are very slight, and Ireland has a record of legislating when the ECHR rules against it. Minister for Health Mary Harney has said the ruling is binding and requires legislation, but she acknowledged it will in fact fall to the next government to legislate. The Labour Party is already committed to legislating in line with the X case, and it is unlikely that Fine Gael would refuse to accept the Strasbourg ruling. Implementing it is another matter.
During the case the Government claimed there was no need to legislate, as doctors knew where they stood in the light of various court judgments, and a person in the situation of the third applicant could have settled the matter with her doctor.
The court emphatically rejected this argument and outlined the questions that needed to be answered in legislation. It pointed out that no criteria or procedures had been laid down in Irish law, or by doctors’ professional guidelines, by which the risk to the life of the mother could be measured. It also pointed out that the 1861 Act remained unamended, creating serious criminal offences and thereby contributing to the lack of certainty for any woman seeking a lawful abortion in Ireland.
In addition, the court pointed out that the instances where, according to the Irish Government, the termination of pregnancy could take place in Irish medical practice (pre-eclampsia, ectopic pregnancy and cancer of the cervix) did not include the circumstances of the third applicant to the European court, Ms C.
The 1861 Act constituted a “significant chilling factor” for both women and doctors in the medical consultation process, it said, with a real risk of serious criminal conviction and imprisonment, and, for the doctor, a risk of professional disciplinary proceedings, if the abortion was later found not to accord with Article 40.3.3 of the Constitution.
It will now fall to the next government to design legislation to end the procrastination described by Mr Justice McCarthy as “inexcusable” as far back as 1992 in the X case, and meet the requirements of the Strasbourg court ruling.
A non-exhaustive list of what such legislation must contain includes, first of all, a definition of “the unborn” (this will have implications for the treatment of in vitro embryos); what will constitute a risk to the life of the mother, outlining how that should be assessed, and by whom; it must specify the places in which abortions can be carried out, and set limits on the length of gestation of the foetus affected, among other issues.
Such legislation will, of course, be controversial, and every line of it is likely to be contested. But it is no longer possible to avoid grasping this troublesome nettle.
Carol Coulter is Legal Affairs Editor