by CARL O'BRIEN
Thu, Dec 10, 2009
THE CHALLENGE: THREE WOMEN were subjected to indignity, stigmatisation and ill-health as a result of being forced to travel abroad for their abortions, the European Court of Human Rights heard yesterday.
Legal representatives for the women – who are supported by the Irish Family Planning Association – said their clients were unable to challenge the laws in Ireland because there were no effective domestic legal remedies available to them.
Addressing the court, counsel for the women Julie Kay said taking a case in the Irish courts would have been “costly, futile and could have forced them to relinquish their anonymity”.
Both the State and legal representative for the women outlined their cases before a panel of 17 judges in the court’s grand chamber. High Court judge Mrs Justice Mary Finlay Geoghegan was among the judges on the panel.
Ms Kay contested the Government’s claim that abortion was available in Ireland in the case where a mother’s life was at risk.
While this was provided for following the Supreme Court’s ruling in the 1992 “X” case, she said the Government had failed to produce any legislation for doctors or medical practitioners on this issue.
As a result, doctors were not willing to intervene for fear of potential imprisonment or losing their medical qualifications if the termination was later found to be unlawful or unnecessary. Ms Kay added: “In fact, there are no relevant statistics to show that any life-saving abortions have been carried out since the X case.” Under the 1861 Offences Against the State Act, it remains a criminal offence to “unlawfully procure a miscarriage”.
On the issue of whether the facts of their case were reliable, Ms Kay said their statements had been accepted by the court and pointed out that the State had not sought any additional information in relation to the three women’s cases.
Taking issue with the Government’s insistence that Ireland’s abortion laws were safeguarded as a result of protocols attached to Maastricht and Lisbon treaties, Ms Kay said this was irrelevant and they could not be used as an excuse to affect women’s rights.
Other grounds on which the women’s human rights were violated included through financial discrimination, the court heard.
Ms Kay said some of the women had to borrow money from friends or money lenders to travel abroad, contravening protections under the European Convention.
The women also faced sexual discrimination through the Government’s failure to provide access to vital healthcare which is only needed by women, Ms Kay said. The court also heard that Ireland’s laws were out of step with its European neighbours, given that 44 out of 47 European countries now provide for abortion to protect women’s health and wellbeing.
Ms Kay, along with senior counsel Carmel Stewart, represented the women in court yesterday. Speaking after the hearing, Niall Behan, of the Irish Family Planning Association, said that he was confident the court’s judgment would “establish a minimum degree of protection to which a woman seeking an abortion to protect her health and wellbeing would be entitled”.
Also yesterday, a small group of anti-abortion campaigners from the Society for the Protection of Unborn Children gathered outside the court, holding a prayer vigil while the case was being heard. They said a positive ruling could have a similar effect to the landmark Roe vs Wade case in the US..
Their Stories: Three Women At The Centre Of The Challenge
She was unmarried, unemployed and living in poverty when she became pregnant unintentionally. She had four young children, all in foster care as a result of problems she had faced as an alcoholic.
In the year before her fifth pregnancy, she remained sober and was in constant contact with social workers with a view to regaining custody of her children. She felt a further child would jeopardise the successful reunification of her existing family.
She decided to travel to Britain to have an abortion. The British NHS refused to carry out the operation at public expense, so she borrowed money from a moneylender. Her difficulty in raising the money delayed the abortion by three weeks.
On her return, she experienced pain, nausea and bleeding for up to nine weeks, but was afraid to seek medical advice because of the prohibition on abortion.
She was single when she became pregnant unintentionally. She had taken the morning-after pill the day after intercourse, but was advised by two different doctors that it had not only failed, but had given rise to a significant risk that it would be an ectopic pregnancy, where the foetus develops outside the uterus.
She was not prepared to become either a single parent or run the risks associated with an ectopic pregnancy.
She travelled to Britain for an abortion.
On her return, she started passing blood clots and, since she was unsure whether this was normal and could not seek medical advice in Ireland, she returned to the clinic in Britain.
The impossibility for her to have an abortion in Ireland made the procedure unnecessarily expensive, traumatic and complicated.
A Lithuanian national living in Ireland, she had been treated with chemotherapy for cancer over the course of three years.
The cancer went into remission and she became unintentionally pregnant. She was unable to find a doctor willing to make a determination as to whether her life would be at risk if she continued to term or to give her clear advice as to how the foetus might have been affected.
Given the uncertainty about the risk involved, she decided to have an abortion in Britain. Although her pregnancy was at an early stage, she could not have a medical abortion (where a miscarriage is induced) because she was a non-resident. Instead, she had to wait eight weeks until a surgical abortion was possible. On returning home, she suffered the complications of an incomplete abortion, including prolonged bleeding and infection.
© 2009 The Irish Times