State must face the facts and reform abortion law


OPINION:The European Court may yet rule that Ireland should expand the grounds for making abortion available here

IRELAND’S RESTRICTIVE abortion laws are on thin ice. In its landmark ruling in ABC v Ireland, the European Court of Human Rights recognised that Irish abortion law violates women’s human rights. The court found that Ireland must make life-saving abortion services available.

Every day the State fails to reform its restrictive abortion laws, it is violating the judgment of the court.

The judges also put Ireland on notice that it needs to reform its laws to better protect women’s health and wellbeing. The court left it to the State to further explore the necessary broadening of abortion rights in Ireland. But it is clear that the ice is cracking.

ABC v Irelandinvolved three women with very different circumstances, all of whom experienced crisis pregnancies and had to travel abroad for abortion services. The case was brought before the court’s highest body – the 17-judge Grand Chamber. The judges found unanimously in favour of Applicant C, a woman who had become pregnant while in remission for a rare form of cancer.

The court’s response to applicants A and B indicates a more dramatic revision of Irish abortion law is on the horizon. Applicants A and B had sought abortion services to protect their health and wellbeing but had not alleged they had been in any “grave danger”.

The court’s majority of judges stopped short of finding a violation of A or B’s human rights. The judges acknowledged that travelling abroad for an abortion constituted a significant psychological, physical and financial burden on the women and rejected the State’s attempt to discount these well-documented hardships.

The judges also noted how out of step Irish law is with the overwhelming European consensus: the vast majority of states provide abortion services when a woman’s health or wellbeing is at stake. At the end of the day, the judges’ finding that A and B’s rights had not been violated simply hinged on the women’s ability to access abortion information and services by travelling abroad. A and B’s human rights had been sullied, but not broken.

Two additional judges noted that in this case they did not think the dangers A and B faced were severe enough to find against the State, but cautioned that they could find otherwise: “in other cases, in which there are grave dangers to the health or the wellbeing of the woman wishing to have an abortion, the State’s prohibition of abortion could be considered disproportionate”, and therefore would violate the Convention.

More significantly, an additional six judges firmly believed that Ireland had in fact violated A and B’s human rights. These six judges noted in vigorous dissent that the extreme deference the other judges had given to the State was “a real and dangerous new departure in the court’s case-law”.

The court’s decision in no way indicates a blanket approval of Irish abortion restrictions.

The clock is running now. Of the thousands of women each year who face crisis pregnancies, a number face grave dangers to their health and wellbeing.

It is only a matter of time before more women seek relief before the court. The State would be wise to heed the court’s warning. As it skates ahead of the breaking ice, this Government should proactively reform abortion law to better meet its obligations under the European Convention. The alternative is to simply stall until the next court case. In the future the court is not likely to look well upon the State if confronted by a woman whose pregnancy presents severe threats to her health – particularly if her ability to travel abroad for abortion access is limited.

Indeed, the court has made it clear that its doors are open to Irish women who cannot find relief from the Irish legal system. The court acknowledged that women and girls in crisis pregnancy have been frozen out of the Irish legal system.

One of the most monumental aspects of this ruling was that the court firmly rejected the State’s attempts to keep the women’s claims out of the court. The court found that applicants A and B, in particular, could not find any relief for their human rights claims within the existing Irish legal system and were not required to go through the pointless and expensive motions of such a case.

So where do we go from here? The most pressing need is for legislation to provide doctors and their patients with clear, workable guidelines for when legal, life-saving abortion is permissible. The State must do so with haste to avoid continuing violations of the Convention. The State has acknowledged that this is required to comply with the court’s ruling.

In the New Year, Ireland must move to reform its abortion laws more completely. It is time for the State to demonstrate it is a genuine champion of human rights at home as well as abroad.

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