The UN, Ireland and abortion
Sir, – Your editorial of June 11th is mistaken in its assertion that no multilateral human rights treaty specifies that women have an explicitly guaranteed right to an abortion in certain situations. Article 14.2(c) of the Maputo Protocol to the African Charter on Human and Peoples Rights, adopted in 2003, provides that states parties shall authorise abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother. Although Ireland is not a state party to that treaty, the adoption of the provision is indicative of the state of general international law at the time.
Indeed the editorial misconstrues the nature of legal sources in general and international human rights law in particular. Human rights treaties by their nature set out general rules and principles. They do not specify their application to individual cases and circumstances.
Although covenants and conventions to which Ireland is a party, such as the European Convention on Human Rights and the International Covenant on Civil and Political Rights, do not contain explicit language on abortion, they do contain explicit guarantees of the right to freedom from torture and ill-treatment.
Nowhere in these treaties will we find an explicit list of the forms of state conduct that can constitute torture and other ill-treatment. In that respect their omission is deliberate; the drafters of the treaties knew that sadly human cruelty knows no bounds. The guarantees of freedom from ill-treatment enshrined in these instruments were phrased in the broadest possible terms so as to ensure they would always encompass the various forms of horror and trauma states inflict upon those in their jurisdiction.
When a state party such as Ireland denies an individual woman access to an abortion which causes her pain and suffering of a degree sufficient to meet the threshold required by those prohibitions of ill-treatment then a violation occurs. Recognition of an individual violation by an international court or quasi-judicial body is not relevant to the occurrence of the violation. Perhaps it would ensure the victim receives remedies and redress. Perhaps it would up pressure on the government to change laws or practices. Perhaps it would reassure the editor of this paper. But, with or without that recognition, the violation occurs. – Yours, etc,
Dr EMILIE CLOATRE,
Dr VICKY CONWAY,
School of Law,
University of Kent;
Dr OLIVIA SMITH,
School of Law
Dublin City University;
Dr LIAM THORNTON,
School of Law,
University College Dublin;
Dr RUTH FLETCHER,
School of Law,
University of London, and 20 others. For full list of signatories see irishtimes.com/debate/letters
Sir, – The United Nations Committee on Social, Economic and Cultural Rights has erred in describing Irish law on abortion as “highly restrictive”, and it refers in that context to the Constitution and the Protection of Life During Pregnancy Act 2013, implying that both need to be changed in order to conform to international human rights standards. In fact the Constitution is not restrictive, in this issue. It is affirmative and supportive of the right to life of both the mother and the child (Article 40.3). The Protection of Life During Pregnancy Act 2013 provides, in an enabling way, for procedures which are deemed necessary to save the life of the mother – hardly the stuff of “highly restrictive” legislation in the sense in which the committee implies. Regarding conformity with human rights standards, a right to life must be the most fundamental. Rights to freedom of speech, movement, assembly, franchise, etc, are of value only to the living. – Yours, etc,
Sir, – I refer to the report of the UN Committee on Economic, Social and Cultural Rights, which called, among other things, for a referendum to repeal Article 40.3.3 of the Constitution, and for a revision of the 2013 abortion legislation.
While the 2013 abortion law, in allowing abortions up to birth on grounds including threatened suicide, is a threat to the lives of unborn children, the banning of abortion has never threatened the lives or health of pregnant women.
For example, in relation to the death of Savita Halappanavar, the HSE review of her death (published in 2013) showed that it was a series of medical shortcomings that were at fault, and not the non-availability of abortion. Before induced abortions were legalised in Irish hospitals by this Government, UN reports consistently showed that Ireland, without abortion, had one of the lowest maternal mortality rates in the world.
It is a disgrace that this UN committee has not alone failed to defend the right to life of unborn children, but is now working to undermine it. The facts speak for themselves. Ireland’s legal ban on abortion never prevented medical professionals from treating a pregnant woman whose life was in danger, even if this treatment had the consequence of ending the life of the baby.
However, there is a huge difference between medical treatment to save the life of a mother and induced abortion.
The difference between what happens in obstetric practice that recognises and protects the right to life of mother and baby, and an abortion regime, is that a duty of care exists, where doctors provide essential treatment to preserve the life of the mother, but also do whatever is practicable to preserve the life of the baby.
What is needed now is the repeal of the 2013 abortion legislation, and the introduction of clear guidelines which affirm the two-patient care model, which looks after and protects the mother, but also includes values and seeks to protect the life of the unborn child. – Yours, etc,