Abortion in Ireland: X Case Revisited Again

Ireland has become a much more liberal country over the last few years - for example, around 73% of people support same sex marriage - but abortion is still a bitterly fought issue. In referendums in 1992 and 2002, the Irish people voted for abortion to be permitted where the mother's life is at risk, but no such legislation has been passed in the 20 years since the X Case that prompted the debate. Tragically a woman has recently died after a miscarriage, sparking an intense debate over the law and reproductive rights in Ireland.

From the Irish Times:

"...pro-choice campaigners have called on the Government to legislate for abortion when the mother’s life is at risk, following the death of Savita Halappanavar after she miscarried at University College Galway last month.

Ms Halappanavar (31) was 17 weeks pregnant when she presented with back pain at the hospital on October 21st. Her husband Praveen Halappanavar claims she was denied a termination despite asking for one several times following her miscarriage diagnosis because the foetal heartbeat was still present.

She spent two days "in agony" until the foetal heartbeat stopped and surgery was carried out to remove the dead foetus. She died of septicaemia on the 28th."

I've blogged in 2010 about the A, B and C case decided by the ECHR in Strasbourg, which ruled that Ireland had breached the convention by not legislating to make right to abortion as described under its own laws accessible to women. Note that this ruling did not change the law on abortion in Ireland, but rather stated that not giving effect to rights decided on nationally breached the convention. The current rules on abortion are very strict, and there is a danger of a chilling affect on doctors, making them afraid of breaking a law that is uncertain, or perhaps even allowing them to refuse abortions by using the legal uncertainty as cover.

While the government has called for people not to prejudge the result of inquiries into Savita Halappanavar's death, it is clearly an on-going scandal that there is no clear law in this area despite two referendums and human rights rulings. There is no excuse for the lack of legislation on this 20 year old issue, and the government needs to act to bring clarity to the law, as voted for democratically and in compliance with the courts. There must be no more hiding behind inquiry after inquiry and report after committee report: it's long past the time for action.

The Council of Minister of the Council of Europe, which oversees compliance with ECHR rulings, will report on Ireland's compliance with the A, B and C ruling at the start of December.

Fine Gael lacking courage and conviction in the Irish Abortion Debate

In my last post I wrote about the latest ECHR judgment concerning abortion - A, B and C v Ireland. On Tuesday the leader of the largest opposition party, Enda Kenny of Fine Gael, said that the issue was for an all-party committee to investigate, and would not commit to a referendum on the matter:

"Mr Kenny said abortion had been a very divisive issue in Ireland in the past and a re-run of those debates was not what the country needed right now.

[...]

“We had the X case way back in the 1990s and the European Court of Human Rights has given its decision now. This judgment required proper analysis and some in-depth discussion. What I would propose is that the next Oireachtas should establish a process to look at the core issues here. I am not going to shirk the issue but I am not going to predetermine what the outcome will be.”

[...]

“In this case, my view is that we should set up an appropriate all-party committee with terms of reference that would allow it to have access to the best legal advice, to the best medical advice . . . what should be done might range across a spectrum, from legislation to a list of State recommendations or regulations that the medical profession could adhere to and operate within,” he says.

“My position is I do not favour legalising abortion on demand. We have a situation where you have difficult, hard cases, and some people have gone through very difficult circumstances but there is an ECHR judgment, there is a Supreme Court decision and there is a constitutional position. If the next Oireachtas is to respond, it has got to determine what the facts are, the scale of the problem and the nature of it and see if we can arrive at a consensus on how to deal with it.”"

This is clearly a cop-out. It is understandable that the focus of FG in government would be the economic situation, but it's clear that FG don't know how to approach the matter at all. It's s clear example of the reluctance of the Irish political parties to think about these matters, never mind have a position on them.

The A, B, and C judgment basically said that Irish law did not ensure adequate access of women in Ireland to abortion where Irish law stated that they were entitled to it. The judgment quoted from reports, and it is clear that there have been research into this area before, and on a continuous basis. So if Kenny didn't want to draw attention to abortion as a devisive issue, he could have just stated that, said that a FG-led government would bring the law into line with the Constitution and the ECHR ruling.

The statement might be a result of tensions within the party (which is centre-right). Conservatives may want to retain strict abortion laws, while more liberal members may want to adopt more liberal abortion laws. From the Irish Times article it appears that Kenny wants abortion to be available where the mother's health would be affected, even if not on demand (currently it's only available if the mother's life is in danger). That would require a referendum.

There are 3 options:

1. Keep things the way they are, but make access to abortion were it's already permitted under the law more accessable in practical terms (the A, B and C line).

2. Have abortion were the mother health is in danger (also in cases of rape/incest/etc.).

3. Permit abortion on demand.

2 & 3 would require a constitutional amendment (which would have to be passed by referendum). In those cases you advocate a position and stick to it: the nitty-gritty of legislative work comes afterwards, when it permitted under the Constitution. The fundamental argument is political, and if the political parties cannot face up to taking a principled stand from wherever they stand on the political spectrum, it's a craven act of political cowardice.

ECHR and Abortion in Ireland

The ECHR has delivered its Grand Chamber judgment on the A, B, and C v Ireland case earlier this month, on whether the rights of three women under the Convention had been violated due to their inability to access abortion in Ireland. The current Irish abortion laws are very strict - some of the strictest in Europe - prohibiting abortion except in cases where the mother's life is at risk. This is a high threshold, as risks to the health of the mother are not enough. The issue is very sensitive in Ireland, as the right of the unborn to life is enshrined in the Irish Constitution (brought in via an amendment in 1983), and would require a referendum to change - something which there is little will for among the political parties. Ireland has held several referendums on the issue of abortion, and the parties have pretty much decided that there's no votes in opening up such a sensitive issue.

In short, the Court ruled that the fact that A and B had to travel to obtain abortion did not breach their rights under Article 3 (torture and inhuman/degrading treatment) or Article 8 (right to private life), but there had been a breach of Article 8 in the case of C, who feared that her pregnancy could cause a return of her cancer. The Court was essentially stating that Ireland had breached the Convention by not ensuring the effective protection of rights it was guaranteeing (a doctrine developed in Tysiąc v. Poland, which also concerned abortion), as the Court judged that there was a lack of sufficient means of obtaining a medical evaluation showing that a woman fell within the exception permitting abortion. Since C couldn't obtain such verification, there was a breach of her rights.

The judgment has been covered well by the ECHR Blog and Human Rights in Ireland. The Human Rights in Ireland article is a great brief explanation of the judgment's context in Irish law.

So claims that the Strasbourg Court is interfering in Irish abortion law are simply wrong. The Court just states the Tysiąc v. Poland position that if a state grants rights, then individuals should have adequate access to such rights. In a way, the Court is acting as a court of fourth instance on human rights here: no European-wide right to abortion has been recognised. Neither the Lisbon Treaty nor the ECHR ruling has changed anything regarding Irish abortion law. Not that this stops fundamentalist Catholic groups such as Youth Defence from decrying the judgment as interfering:

"The ECHR has no business interfering in Irish pro-life laws and they have no right to try to scare Irish women into believing that they would ever need an abortion to save their life."

Sadly, there is unlikely to be any political debate or moves for Constitutional amendment in the forseeable future. The current Fianna Fáil government brought in a blasphemy law provided for under the Constitution, rather than remove the Constitutional provisions via referendum, which would have been more in line with 21st Century Ireland. Though Fianna Fáil won't be in government for much longer, the next government's attention will hardly be focused on reforming the Constitution to remove the explicit Catholic ethos and to secularise the state further. So while the country becomes ever more liberal and secular in its attitudes, the entrenchment of a Catholic outlook in the Constitution gives groups like Youth Defence a stronger say than they would otherwise have - to the extent that they can claim their views are the patriotic ones.

On a final note, regarding the treatment of A and B, the Court should have dealt with things differently. The dissenting opinion views the core issue more clearly than the judgment: the Court should have balanced the rights of the mother and unborn child, rather than confuse the issue with the margin of appreciation the state has over determining the point at which the unborn child can be considered alive (the issue in Vo. v France). I'll not go into the dissenting opinion (this post is already long enough!), but it makes quite a convincing argument as to the approach the Court should have taken. Perhaps it is an example of the Court shying away from making politically sensitive judgments at the expense of the coherence of its case law.