Abortion and the law

 

When, in December 2010, the European Court of Human Rights (ECHR) ruled in A, B, and C v Ireland that Ireland was in violation of Article 8 of the European Convention on Human Rights, it imposed a legal obligation on the Government to change the law to conform with the convention. In 2012, the Protection of Life during Pregnancy Bill fulfilled that obligation in part (statutory regulation is still required). And, to whip reluctant TDs through the lobby, the Government made much of that obligation – TDs could tell constituents that they had no choice but to vote in favour even if they opposed the Bill.

Not for the first time a European court has prised new rights for Irish citizens out of a conservative, reluctant Oireachtas. And in the wake of the UN Human Rights Committee report last week on Ireland’s human rights record, there were suggestions that we might now be heading down a similar road in respect of abortion rights in rape, incest and fatal foetal abnormalities cases. However, the committee does not have the same standing as the court. Its findings are merely “guidance” to governments, a political rather than a legal obligation. Although the committee found what it sees as breaches of the standards set by the International Covenant on Civil and Political Rights to which we are bound by treaty, the treaty’s provisions are not judiciable – enforceable – through the Irish courts, a lacuna that the committee has also raised.

But the committee’s view that there is a right to abortion in the three exceptional circumstances sets an important new human rights benchmark for Ireland, and one that chimes with what polls suggest by substantial majorities the public here currently accepts, albeit ahead of what is currently politically possible.

In the past the ECHR has balked at requiring member states to introduce abortion. It recognises the need in such issues to acknowledge cultural differences between member states and gives them what it calls a “margin of appreciation” – it is sensitive to the view that it is preferable that such controversial rights, on which there is still only an emerging international consensus, should be introduced by democratic means nationally rather than by judicial fiat. In the A,B, and C case the court did not order the introduction of abortion but found failure to implement an existing constitutional right to a lawful abortion where a woman’s life is at risk.

It is possible the ECHR will go further yet when presented with a case on rape, incest or fatal abnormality and once again force the hand of reluctant Irish politicians – or assist them in their work, depending on your point of view. But it would be wrong to rely on such an eventuality. The political class should begin to discuss how it – itself – can prepare to amend what the UN has pointed out are clearly deficient constitutional provisions on abortion.