Thursday, December 17, 2009

Cork Independent: Cork lobby group call for legislation on abortion

Written by Mary O’ Keeffe
Thursday, 06 December 2007

A Cork lobby group is calling on the government to introduce legislation on abortion in Ireland. At a recent event held by the Cork Women’s Right to Choose group, members of the group said the time had come for government to face up to the job of legalising abortion in the country.

Sandra McAvoy of Cork Women’s Right to Choose Group said that attitudes in Ireland had changed since the 1980s and that it was time for the government to face up to the job of legalising abortion instead of turning a blind eye while thousands of women are exiled every year to seek services abroad.

“Abortion provision is a matter of justice as well as one of women’s health and well-being. It is ridiculous that the private concerns of young women like Miss D, whose case was heard earlier this year, are exposed in open court in the most distressing circumstances.

“We urgently need legislation to establish the grounds for abortion in Ireland in cases of threat to women’s lives and health or when a foetus is non-viable,” she said.

Richard Keane, Coordinator of the Safe and Legal (in Ireland) Abortion Rights Campaign added that there was a need for the Government to make abortion safe and legal in Ireland. “Public opinion and civil society have changed dramatically to support a pro-choice position and recognise that women are entitled to be trusted on this public health issue. At a minimum, the Government has a duty to legislate for the X case, as it has promised, but has consistently failed to do,” he said.

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Wednesday, December 16, 2009

Irish Examiner: MEANING OF LIFE

By Claire O’Sullivan

Wednesday, December 16, 2009

THE GOVERNMENT is under mounting pressure to finally enact legislation on assisted human reproduction after a landmark Supreme Court ruling relating to frozen embryos stated life for the "unborn" only begins when a foetus or a fertilised egg is implanted in the womb.

In a unanimous ruling, the five judges of the Supreme Court also stated that regulation on assisted human reproduction was a matter for the Oireachtas and not the judiciary.

In the ruling the Supreme Court found that frozen embryos do not have an automatic right to life and as a result are not afforded the legal protection guaranteed by article 40.3.3 of the Constitution.

Up to 1,500 children are born each year in this country following IVF treatment.

The judgments followed an appeal of a High Court decision by a separated mother-of-two from south Dublin, who was seeking to use frozen embryos against the wishes of her estranged husband.

The embryos were created in early 2002 when the couple underwent care at the Sims clinic, Rathgar, Dublin.

Dismissing the appeal, the Supreme Court also judged no agreement had been made between Thomas and Mary Roche for her to be implanted with three unused embryos in a second course of fertility treatment.

In his judgment, Mr Justice Adrian Hardiman said: "There has been a marked reluctance on the part of the legislature actually to legislate on these issues.

"The court simply draws attention to this. That is all it can do. That is what Mr Justice McCarthy did, apparently in vain, in the X case 18 years ago. But the court does so as seriously and as urgently as it can. The issue is all the more urgent because, of course, scientific developments in the area of embryology and the culturing of stem cells will not stand still."

Mr Justice Nial Fennelly said it was disturbing that four years after the Oireachtas received the Report of the Commission on Assisted Human Reproduction, no legislative proposals had been formulated and it appeared the state has no immediate intention to propose any legislation.

Last night, 43-year-old Ms Roche said she respected the Supreme Court’s decision: "I acted as any mother would do to defend the interests of my unborn embryos and I trust that the public will understand that I had no alternative but to bring this case."

Fine Gael spokesman on children Alan Shatter last night said it was "absolutely scandalous" that the Government has failed to bring the necessary legislation before the Oireachtas.

"The Government’s abdication of its legislative responsibility in this area for over a decade has left the judiciary in the most unenviable of positions of not only having to fulfil their judicial duties but also of having to decide on matters of sensitive social policy. This is an area which has been subject to such legislation in the vast majority of European Union countries," he said.

Last week, the court ruled that a man who donated his sperm to a lesbian couple should have access to the child he fathered.

A spokesman for Health Minister Mary Harney last night said an update on the progress of legislation was brought to Cabinet in recent weeks.

Draft legislation is expected at some point next year: "The legislation is being prepared. It is extremely complex from a medical, ethical, social and legal perspective and there is a need to have political consensus."



This story appeared in the printed version of the Irish Examiner Wednesday, December 16, 2009

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Tuesday, December 15, 2009

Support Women's Right to Choose!

Irish Independent: Doctors fear abortion charge if they direct patients abroad

By Dearbhail McDonald Legal Editor

Saturday December 12 2009

DOCTORS treating pregnant women whose unborn babies have serious foetal abnormalities are afraid to refer them to expert facilities abroad because of fears of being accused of procuring an abortion.

Professor John Bonnar, the former chairman of the institute of obstetrics and gynaecology, said that Irish-based doctors were afraid that if they referred a patient to a foreign facility, they would be arrested and brought before the courts.

"It (a criminal prosecution) is not going to happen," Professor Bonnar told the Irish Independent.

"But doctors are reluctant, they are wary in case they have gardai arriving at their door. There is a fear that if you refer your patient to an expert foetal clinic or hospital and she ultimately decides to discontinue her pregnancy, you will stand accused of being involved in an unlawful abortion."

The debate around the status of legal abortion in Ireland has been revived in the wake of a landmark legal action earlier this week in the European Court of Human Rights where the Government robustly defended Ireland's restrictive abortion regime.

Three women, known as A, B and C, told a 17 judge Grand Chamber -- which is convened in cases of major importance -- that their health and human rights were violated because they had to travel to Britain to terminate their pregnancies.

The ECHR asked the Irish Government to provide statistics or information as to how many lawful abortions were carried out every year in Ireland.

In response, the State supplied a list of figures for women discharged with a diagnosis of ectopic pregnancies between 2005 and 2008, but could not state how many women had miscarried naturally or required a termination.

No figures were provided for women forced to undergo a radical hysterectomy -- the removal of her uterus and cervix -- to save her life.

During the hearing, lawyers for the State argued that there was a "clear and bright blue line" in Irish law that was known and applied where there was a risk to the life of the mother.

But that view has been rejected by the Irish Family Planning Association which supported the three women in the action.

"While abortion is technically legal in Ireland when a woman's life is at risk, there are no legal or clinical guidelines to assist doctors in assess whether a particular risk qualifies as a risk to life," said an IFPA spokesperson.

"The Government makes no provision to protect a woman's health and well-being.

"Asking a doctor to distinguish between a threat to a woman's life and a threat to her health in medical practice is unworkable.

"Moreover, forcing a woman to endure a progressive and increasingly dangerous condition before she is deemed eligible for a legal abortion is both impractical and inhumane."

Prof Bonnar, who has carried out up to five terminations throughout his medical career to save the life of a pregnant woman, said doctors had nothing to fear if they intervened to save a mother's life.

But he said that advances in medical technology, which have resulted in pregnant women seeking pre-natal tests to ascertain if their unborn child had any abnormalities, had placed doctors in a difficult position as they were ethically obliged to provide vital after-care and support should a woman abort her foetus.

"If a woman has a radical hysterectomy to save her life resulting in the termination of her pregnancy, it is not an abortion as the surgical procedure would be carried out whether she was pregnant or not," said Prof Bonnar who has called on fellow doctors to "speak out" on medical practice surrounding lawful abortions in this country.

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Irish Examiner: Church and state not operating in the real world

By Ann Cahill, Europe Correspondent

Monday, December 14, 2009

IRELAND has an ability to produce parallel universes that are breathtakingly wide of reality, and during the past week there were two such instances.

One was unveiled in the Grand Chamber of the Court of Human Rights in Strasbourg on Wednesday and the second in St Peter’s Square in Rome on Friday.

The Ireland being described by the state’s legal team in relation to abortion was unrecognisable. The Irish people in the court looked at one another incredulously, wondering if any of the 17 judges had any way to judge the reality for themselves.

Moral ethos was a phrase bandied about, along with reassurances that there were any number of Irish doctors willing to carry out abortions on women whose lives were at risk from their pregnancies.

That the state was unable to give figures to prove this shows doctors are not in fact willing to risk a lifetime in jail for carrying out an abortion in the absence of clear legal guidelines as requested by the courts.

The Attorney General drew gasps when he referred to a "fine bright line" that allows doctors to tell the difference between women whose lives were at risk and those whose health was an issue and, therefore, would not qualify for an abortion in Ireland.

Was he referring to the fine bright blue line on pregnancy testing kits many wondered? He insisted there was help, support and advice for women in Ireland, but made no reference to the fact that each year more Irish women have abortions than those in many other European countries where it is legal.

As a result there is no help, support or advice available for Irish women, other than from voluntary organisations, when they are in crisis or when they return from having an abortion abroad. Rogue groups who try to dissuade people from abortions by frightening them with lies often compound their difficulties.

The Attorney General referred repeatedly to the guarantees in the Nice and Lisbon Treaties on Ireland’s unique position on abortion, which he fought to have included. He made no mention of the fact that our EU colleagues regard this as a neat piece of hypocrisy, since so many Irish women travel abroad to their countries for their abortions.

The second incidence of a parallel universe involved the reaction of the Catholic Church to the Murphy Report on clerical sex abuse.

The senior clergymen appeared to inhabit a different world from the rest of us as they spoke of renewal, culture change and repentance. Their frustration at the repeated questions of when we were going to see bishops dismissed was understandable in their world.

Each diocese is an independent republic we are told and the Pope can only request a bishop to resign. Firing bishops would be beside the point, they suggest, and say what is needed is a reorganisation of the Church in Ireland.

This is sensible, but sometimes people want to see those who have been in positions of power do something painful that shows they understand and are sorry.

For the Pope to say, "I am sorry" in plain English would have been a start.

A little humility does not require one to be humiliated after all. But in the all-male preserve of the Church where bureaucrats rise to power, their main job is to preserve the structures of their power, and the Church in Ireland has not shown itself to be any different.

Until there is an inclusive church with gender equality throughout the ranks, changing culture will be just another academic exercise.



This story appeared in the printed version of the Irish Examiner Monday, December 14, 2009

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Thursday, December 10, 2009

Irish Times: Women 'lose health, money and dignity' because of law

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

Ms A

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.

Ms B

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.

Ms C

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

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ABC v Ireland Statement of Facts (ECHR)

7 May 2008

THIRD SECTION

Application no. 25579/05
by A., B. and C.
against Ireland
lodged on 15 July 2005

Statement of Facts

THE FACTS

The applicants are two female Irish nationals and one female Lithuanian national, resident in Ireland. They are represented before the Court by Ms J.F. Kay, legal consultant, Irish Family Planning Association, Dublin.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

1. The first applicant

The first applicant was unmarried, unemployed and living in poverty at the time of the events in question. She became pregnant unintentionally and believing that her partner was infertile. She had four young children, all at that time in foster care as a result of problems the applicant had experienced as an alcoholic. During the year preceding her fifth pregnancy the applicant had remained sober and had been in constant contact with social workers with a view to regaining custody of her children.

She considered that a further child at this critical moment in her life would jeopardise the successful reunification of her existing family. She decided to travel to England to have an abortion. The United Kingdom National Health Service refused to carry out the operation at public expense and she had to borrow the money for treatment in a private clinic from a money lender. Her difficulty in raising the money delayed the abortion by three weeks.

She had to travel to England alone, in secrecy and with no money to spare, without alerting the social workers and without missing a contact visit with her children. On her return to Ireland she experienced pain, nausea and bleeding for eight to nine weeks, but was afraid to seek medical advice because of the prohibition on abortion.

2. The second applicant

The second applicant was single when she became pregnant unintentionally. She had taken emergency contraception (the “morning-after pill”) the day after the unprotected intercourse, but she was advised by two different doctors that this had not only failed to prevent the pregnancy but also given rise to a substantial risk that it would be an ectopic pregnancy, where the foetus develops outside the uterus.

The applicant was not prepared either to become a single parent or to run the risks associated with an ectopic pregnancy. She travelled to England for an abortion. On her return to Ireland she started passing blood clots and, since she was unsure whether or not this was normal and could not seek medical advice in Ireland, she returned to the clinic in England two weeks after the abortion for a check-up. The impossibility for her to have an abortion in Ireland made the procedure unnecessarily expensive, complicated and traumatic.

3. The third applicant

For three years the third applicant was treated with chemotherapy for cancer. Before commencing the treatment, she asked her doctor about the implications of her illness as regards her desire to have children and was advised that it was not possible to predict the effect of pregnancy on the cancer but, if she did become pregnant, it would be dangerous for the foetus if she underwent chemotherapy during the first trimester.

The cancer went into remission and the applicant unintentionally became pregnant. She was unaware of this fact when she underwent a series of tests, contraindicated during pregnancy, to determine her current state of health.

When she discovered she was 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 by the tests she had undergone.

Given the uncertainty about the risks involved, the applicant decided to have an abortion in the United Kingdom. Although her pregnancy was at a very early stage she could not have a medical abortion (where drugs are used to induce miscarriage) because she could not find a clinic which would provide this treatment to a non-resident because of the need for follow-up. Instead she had to wait for eight weeks until a surgical abortion was possible, which caused her emotional distress and fear for her health.

On returning to Ireland after the abortion, the applicant suffered the complications of an incomplete abortion, including prolonged bleeding and infection.

B. Relevant domestic law and practice

1. The legal position prior to the Eighth Amendment of the Constitution

Prior to the adoption of the Eighth Amendment to the Constitution in 1983, Article 40.3 of the Constitution stated as follows:

“1 The State guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2 The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.”

The courts' judgments in certain cases relied upon these and other Articles of the Constitution to recognise the right to life of the unborn and to suggest that the Constitution implicitly prohibited abortion (McGee v. Attorney General [1974] IR 284; G v. An Bord Uchtála [1980] IR 32; Finn v. Attorney General [1983] I.R. 154 and Norris v. Attorney General [1984] IR 36).

In addition, abortion was prohibited under the criminal law in section 58 of the Offences Against the Person Act 1861 (“the 1861 Act”), which provided that:

“Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or not be with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of a felony ...”

Section 59 of the 1861 Act stated that:

“Whoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanour ...”

Section 58 of the Civil Liability Act 1961 provided that:

“The law relating to wrongs shall apply to an unborn child for his protection in like manner as if the child were born, provided the child is subsequently born alive.”

Section 10 of the Health (Family Planning) Act 1979 re-affirmed the statutory prohibition of abortion and stated as follows:

“Nothing in this Act shall be construed as authorising -

(a) the procuring of abortion,

(b) the doing of any other thing the doing of which is prohibited by section 58 or 59 of the Offences Against the Person Act, 1861 (which sections prohibit the administering of drugs or the use of any instruments to procure abortion)

or,

(c) the sale, importation into the State, manufacture, advertising or display of abortifacients.”

The meaning of section 58 of the 1861 Act was considered in England and Wales in R. v. Bourne [1939] 1 KB 687, where the defendant had carried out an abortion on a fourteen-year-old girl who had become pregnant as a result of multiple rape. In his ruling, Macnaghten J. accepted that abortion to preserve the life of a pregnant woman was not unlawful and, further, where a doctor was of the opinion that the woman's physical or mental health would be seriously harmed by continuing with the pregnancy, he could properly be said to be operating for the purpose of preserving the life of the mother. This principle was not, however, applied by the Irish courts and in the case of The Society for the Protection of the Unborn Child v. Grogan and Others (unreported judgment of 6 March 1997) Keane J. maintained that “the preponderance of judicial opinion in this country would suggest that the Bourne approach could not have been adopted ... consistently with the Constitution prior to the Eighth Amendment”.

2. The Eighth Amendment of the Constitution

From the early 1980s some concern was expressed about the adequacy of existing provisions concerning abortion and the possibility of abortion being deemed lawful by judicial interpretation. There was some debate as to whether the Supreme Court would follow the course adopted in the United States of America in Roe v. Wade 410 US 113 (1973) or in the United Kingdom in Bourne (cited above).

A referendum was held in 1983 resulting in the adoption of a provision which became Article 40.3.3 of the Irish Constitution, the Eighth Amendment (53.67% of the electorate voted with 841,233 votes in favour and 416,136 against). This Article, a self-executing provision of the Constitution not requiring legislation to give it effect, reads as follows:

“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

3. Relevant case-law thereafter and the Thirteenth and Fourteenth Amendments

A number of cases then came before the courts concerning the interpretation of the Eighth Amendment and the provision of information on or referral to abortion services available in other countries.

In 1986 the Society for the Protection of the Unborn Child (“SPUC”) obtained an injunction restraining two organisations (Open Door Counselling and the Dublin Well Woman Centre) from furnishing women with information which encouraged or facilitated an abortion. The Supreme Court held (Attorney General (S.P.U.C.) v. Open Door Counselling [1988] I.R. 593]) that it was unlawful to disseminate information, including the address and telephone number of foreign abortion services, which had the effect of facilitating the commission of an abortion (see also, S.P.U.C. (Ireland) v. Grogan and Others [1989] I.R. 753). These two organisations complained to this Court about restraints on their freedom to impart and receive information. A violation of Article 10 of the Convention was established (Open Door and Dublin Well Woman v. Ireland, judgment of 29 October 1992, Series A no. 246-A) which led to the entry into force of the Regulation of Information (Services outside the State for Termination of Pregnancies) Act 1995 (“the 1995 Act”).

The interpretation of the Eighth Amendment was further considered in Attorney General v. X ([1992] 1 IR 1). X was a fourteen-year-old girl who became pregnant as a result of rape. Her parents arranged for her to have an abortion in the United Kingdom and asked the Irish police whether it would be possible to have scientific tests carried out on retrieved foetal tissue with a view to determining the identity of the rapist. The Director of Public Prosecutions was consulted who, in turn, informed the Attorney General. On 7 February 1992 an interim injunction was granted ex parte to the Attorney General to restrain X from leaving the jurisdiction or from arranging or carrying out a termination of the pregnancy. X and her parents returned from the United Kingdom to contest the injunction. On 26 February 1992, on appeal, a majority (4 to 1) of the Supreme Court discharged the injunctions, holding that if it were established, as a matter of probability, that there was a real and substantial risk to the life, as distinct from the health, of the mother and that this real and substantial risk could only be averted by the termination of her pregnancy, such a termination was lawful. The Supreme Court accepted the evidence that had been adduced in the High Court that the girl had threatened to commit suicide if compelled to carry her child to full term and deemed this threat of suicide to constitute a real and substantial risk to the life of the mother.

Following this judgment it was decided to hold a further referendum in November 1992. 68.18% of the electorate voted. Three proposals were put forward. The first, which was rejected, was a proposal to amend the Constitution to provide for lawful abortion where there would otherwise be a real and substantial risk to the mother's life, except a risk of suicide. The second proposal, which was accepted, became the Thirteenth Amendment to the Constitution, which reads as follows:

“This subsection shall not limit freedom to travel between the State and another state.”

The third proposal was also accepted and became the Fourteenth Amendment, which provides:

“This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another State.”

4. The Regulation of Information (Services outside the State for Termination of Pregnancies) Act 1995 (“the 1995 Act”)

The 1995 Act defines the conditions under which information relating to abortion services lawfully available in another State might be made available in Ireland. Section 2 defines “Act information” as information that (a) is likely to be required by a woman for the purpose of availing herself of services provided outside the State for the termination of pregnancies; and (b) relates to such services or to persons who provide them. Section 1 confirms that a “person to whom section 5 applies” means a person who engages in, or holds himself, herself or itself out as engaging in, the activity of giving information, advice or counselling to individual members of the public in relation to pregnancy.

Section 5 of the Act provides as follows:

“Where a person to whom section 5 applies is requested, by or on behalf of an individual woman who indicates or on whose behalf it is indicated that she is or may be pregnant, to give information, advice or counselling in relation to her particular circumstances having regard to the fact that it is indicated by her or on her behalf that she is or may be pregnant-

(a) it shall not be lawful for the person or the employer or principal of the person to advocate or promote the termination of pregnancy to the woman or to any person on her behalf,

(b) it shall not be lawful for the person or the employer or principal of the person to give Act information to the woman or to any person on her behalf unless—

(i) the information and the method and manner of its publication are in compliance with subparagraphs (I) and (II) of section 3 (1) (a) and the information is given in a form and manner which do not advocate or promote the termination of pregnancy,

(ii) at the same time, information (other than Act information), counselling and advice are given directly to the woman in relation to all the courses of action that are open to her in relation to her particular circumstances aforesaid, and

(iii) the information, counselling and advice referred to in subparagraph (ii) are truthful and objective, fully inform the woman of all the courses of action that are open to her in relation to her particular circumstances aforesaid and do not advocate or promote, and are not accompanied by any advocacy or promotion of, the termination of pregnancy.”

Section 8 of the 1995 Act reads as follows:

“(1) It shall not be lawful for a person to whom section 5 applies or the employer or principal of the person to make an appointment or any other arrangement for or on behalf of a woman with a person who provides services outside the State for the termination of pregnancies.

(2) Nothing in subsection (1) shall be construed as prohibiting the giving to a woman by a person to whom section 5 applies or the employer or principal of the person of any medical, surgical, clinical, social or other like records or notes relating to the woman in the possession of the person or the employer or principal of the person or a copy or copies thereof in written form.”

Before its enactment, the 1995 Act was referred by the President to the Supreme Court for a review of its constitutionality. The Supreme Court found it to be constitutional (Information (Termination of Pregnancies) Bill [1995] 1 I.R. 1) so that the 1995 Act thereby became immune from future constitutional challenge (Article 34.3.3 of the Constitution).

5. The Constitution Review Group Report 1996

Established in April 1995, the Group's terms of reference were to review the Constitution and to establish those areas where constitutional change might be necessary with a view to assisting the governmental committees in their constitutional review work. In its 1996 report, the Group considered the “substantive” law on abortion in Ireland following the X case and the rejection of the Twelfth Amendment to be unclear (for example, the scope of the admissibility of the suicidal disposition as a ground for abortion and the absence of any statutory time-limit on terminations allowed following the decision in the X case). Although no specific reference to the specific case of lethal foetal abnormality was made, the Group did consider the option of amending Article 40.3.3 so as to legalise abortion in constitutionally defined circumstances, finding in this respect that:

“Although thousands of women go abroad annually for abortions without breach of domestic law, there appears to be strong opposition to any extensive legalisation of abortion in the State. There might be some disposition to concede limited permissibility in extreme cases, such, perhaps, as those of rape, incest or other grave circumstances. On the other hand, particularly difficult problems would be posed for those committed in principle to the preservation of life from its earliest stage.”

The Group concluded that, while in principle the major issues discussed should ideally be tackled by constitutional amendment, there was no consensus as to what that amendment should be and no certainty of success for any referendum proposal for substantive constitutional change in relation to Article 40.3.3. The Group therefore considered that the only practical possibility at that time was the introduction of legislation to regulate the application of Article 40.3.3. That legislation would, inter alia, afford express protection for appropriate medical intervention necessary to protect the life of the mother, require written certification by appropriate medical specialists of “real and substantial risk to the life of the mother” and impose a time-limit to prevent a viable foetus being aborted in circumstances permitted by the X case.

6. The Interdepartmental Working Group Green Paper on Abortion, September 1999 (“Green Paper on Abortion”)

The introduction noted that:

“The current situation ... is that, constitutionally, termination of pregnancy is not legal in this country unless it meets the conditions laid down by the Supreme Court in the X case; information on abortion services abroad can be provided within the terms of the Regulation of Information (Services outside the State for Termination of Pregnancies) Act, 1995; and, in general, women can travel abroad for an abortion.

There are strong bodies of opinion which express dissatisfaction with the current situation, whether in relation to the permissibility of abortion in the State or to the numbers of women travelling abroad for abortion.

...

While the issues surrounding abortion are extremely complex, the objective of this Green Paper is to set out the issues, to provide a brief analysis of them and to consider possible options for the resolution of the problem. The Paper does not attempt to address every single issue in relation to abortion, nor to give an exhaustive analysis of each. Every effort has been made to concentrate on the main issues and to discuss them in a clear, concise and objective way.”

The Green Paper was referred by the Government to the Oireachtas Committee on the Constitution for consideration. The Committee embarked on a detailed process of consultation. Over 100,000 submissions were received from individuals and organisations and hearings were held at which the issues were explored in detail with many of those who had made submissions.

In its Fifth Progress Report published on 15 November 2000, the Committee agreed that a specific agency should be put in place to implement a strategy to reduce the number of crisis pregnancies by the provision of preventative services, to reduce the number of women with crisis pregnancies who opt for abortion by offering services which make other options more attractive and to provide post-abortion services consisting of counselling and medical check-ups. There was agreement on other matters including on the need for the Government to prepare a public memorandum outlining the State's precise responsibilities under all relevant international and European Union instruments.

The Committee agreed that clarity in legal provisions was essential for the guidance of the medical profession so that any legal framework should ensure that doctors could carry out best medical practice necessary to save the life of the mother. However, the Committee found that none of the options canvassed in the Green Paper commanded unanimous support. Three approaches were found to command substantial but not majority support in the Committee: the first approach was to concentrate on the plan to reduce the number of crisis pregnancies and the rate of abortion and to leave the legal position unchanged; the second was to support the plan to reduce the number of crisis pregnancies, accompanied by legislation which would protect medical intervention to safeguard the life of the mother, within the existing constitutional framework; and the third was to support the plan to reduce the number of crisis pregnancies, to legislate to protect best medical practice while providing for a prohibition on abortion, and consequently to accommodate such legislation by referendum to amend the Constitution. However, the Committee did not reach agreement on a single course of reform action.

8. The proposed Twenty-fifth Amendment to the Constitution

In 2002 a third referendum on abortion was called. The objective of the proposed Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill was to resolve the legal uncertainty since the X case, by putting this draft legislation to the electorate: it proposed to permit abortions to be lawfully provided in Ireland at specific institutions but only when, in the opinion of the doctor, it was necessary to prevent a real risk of loss of the woman's life, other than self-destruction. The Bill intended therefore to restrict the rulings in the X case by excluding the risk of suicide as a ground for the lawful termination of a pregnancy.

The referendum of March 2002 resulted in the lowest turnout in all three abortion referenda (at 42.89% of the electorate) and the proposal was defeated (50.42% against and 49.58% in favour).


COMPLAINTS

The third applicant complained that the restriction on abortion, and the lack of clear legal guidelines regarding the circumstances in which a woman may have an abortion to save her life, infringed upon her right to life under Article 2 of the Convention.

All three applicants complained that the restriction on abortion stigmatised and humiliated them and risked damaging their health in breach of Article 3 of the Convention.

They further complained, under Article 8, that the national law on abortion was not sufficiently clear and precise, since the Constitutional term “unborn” was vague and since the criminal prohibition was open to different interpretations. The fact that it was open to women – provided they had sufficient resources – to travel outside Ireland to have an abortion defeated the aim of the restriction and the fact that abortion was available in Ireland only in very limited circumstances was disproportionate and excessive.

The restriction was, in addition, discriminatory in breach of Article 14 in that it had placed an excessive burden on them, as women, and particularly on the first applicant, a poor woman, who had found it more difficult to travel.

Finally, the applicants complained under Article 13 that the State had failed to provide them with an effective domestic remedy.



QUESTIONS TO THE PARTIES


1. Have the applicants exhausted domestic remedies as required by Article 35 of the Convention?

2. In the particular circumstances of each applicant's case, did the national legal position concerning abortion interfere with her rights under Article 8 of the Convention? If so, was the interference provided for by law, did it pursue a legitimate aim and was it proportionate to that aim?

3. Did any of the applicants suffer discrimination in breach of Article 14 taken together with Article 8?

4. Does any issue arise under Article 2 and/or 3 of the Convention?

A. B. AND C. v. IRELAND – NEW CASE

A. B. AND C. v. IRELAND – NEW CASE

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European Court of Human Rights Press Release: ABC v Ireland

Press release issued by the Registrar

GRAND CHAMBER HEARING
A. B. AND C. v. IRELAND

The European Court of Human Rights is holding a Grand Chamber hearing today Wednesday 9 December 2009 at 9.15 a.m., on the admissibility and merits in the case of A. B. and C. v. Ireland (application no. 25579/05).

The hearing will be broadcast from 2.30 p.m. on the Court’s Internet site (http://www.echr.coe.int).

The applicants

The applicants are three women who live in Ireland: two are Irish nationals and one is a Lithuanian national.

Summary of the facts

The case concerns their complaints about restriction on obtaining an abortion in Ireland.

All three applicants travelled to the UK to have an abortion after becoming pregnant unintentionally.

The first applicant, a former alcoholic whose four children had been placed in foster care, decided to have an abortion to avoid jeopardising her chances of reuniting her family. She paid for the abortion in a private clinic in the UK by borrowing money from a money lender.

The second applicant was not prepared to become a single parent. While initially she feared an ectopic pregnancy, she was aware it was not prior to travelling to the UK for an abortion.

The third applicant, in remission from cancer and unaware that she was pregnant, underwent a series of check ups contraindicated during pregnancy. She also understood that there was a risk that her pregnancy would cause a relapse of the cancer. She was unclear and concerned about the risks to her health and life and to the foetus if she continued to term and claimed she could not obtain clear advice. She therefore decided to have an abortion in the UK.

On their return to Ireland the applicants claim they experienced medical complications.

Complaints

All three women complain that the impossibility for them to have an abortion in Ireland made the procedure unnecessarily expensive, complicated and traumatic. In particular, that restriction stigmatised and humiliated them and risked damaging their health and, in the third applicant’s case, even her life. They rely on Articles 2 (right to life) and 3 (prohibition of inhuman and or degrading treatment) of the European Convention on Human Rights. They all also complain, under Article 8 (right to respect for family and private life) of the Convention, that the national law on abortion was not sufficiently clear and precise, since the Constitutional term “unborn” was vague and the criminal prohibition on abortion was open to different interpretations. The fact that women – provided they had sufficient resources – could travel outside Ireland to have an abortion defeated the aim of the restriction and the fact that abortion was available in Ireland only in very limited circumstances was disproportionate and excessive. Furthermore, the restriction placed an excessive burden on the applicants as women, in breach of Article 14 (prohibition of discrimination), and particularly on the first applicant, whose financial means were extremely limited.

Procedure

The application was lodged with the European Court of Human Rights on 15 July 2005. On 7 July 2009 the Chamber relinquished jurisdiction in favour of the Grand Chamber.

Composition of the Court

The case will be heard by the Grand Chamber composed as follows:

Jean-Paul Costa (France), President,
Christos Rozakis (Greece),
Nicolas Bratza (the United Kingdom),
Françoise Tulkens (Belgium),
Josep Casadevall (Andorra),
Giovanni Bonello (Malta)
Corneliu Bîrsan (Romania),
Karel Jungwiert (the Czech Republic),
Elisabet Fura (Sweden),
Alvina Gyulumyan (Armenia),
Khanlar Hajiyev (Azerbaijan),
Egbert Myjer (the Netherlands),
Giorgio Malinverni (Switzerland),
George Nicolaou (Cyprus),
Luis López Guerra (Spain),
Mihai Poalelungi (Moldova), judges,
Mary Finlay Geoghegan (Ireland), ad hoc judge,
Päivi Hirvelä (Finland),
Sverre Erik Jebens (Norway),
Ján Šikuta (Slovakia), substitute judges,

and also Johan Callewaert, Deputy Grand Chamber Registrar.

Representatives of the parties

Government: Peter White, Co-Agent,

Paul Gallagher, Attorney-General,

Donal O’Donnell, Brian Murray, Senior Counsel,

Christine O’Rourke, Geraldine Luddy, Sarah Farrell, Bernadette McDonnell, Advisers;

Applicants: Julie F. Kay, Counsel, Carmel Stewart, Senior Counsel.

***

After the hearing the Court will begin its deliberations, which are held in private. A decision on admissibility, followed if appropriate by a judgment, will be delivered at a later date.1


The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.

1 This summary by the Registry does not bind the Court.

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RTE News: Ireland's abortion laws challenged in Europe

Wednesday, 9 December 2009 22:08

A challenge by three women to Ireland's abortion laws has been heard at the European Court of Human Rights in Strasbourg.

The three women claim that their human rights were violated because they had to travel from Ireland to Britain to terminate their pregnancies.

Both sides this morning outlined their arguments before a panel of 17 judges in the Grand Chamber.

It emerged at the beginning of the hearing that one of the women is a Lithuanian national who is resident in Ireland.

Chamber president Jean-Paul Costa indicated that the Lithuanian government had sought information on the case.

Addressing the court, Attorney General Paul Gallagher SC said the protection of the right to life of the unborn was based on moral values deeply embedded in Irish society and democratically endorsed over three separate referenda.

He said that in 1992 it was recognised by the EU in a protocol attached to the Maastricht Treaty, and later in 2008 and 2009 by 26 EU member states as part of the guarantees offered Ireland in order to re-run the Lisbon Treaty referendum.

He said that the European Convention on Human Rights recognised over 60 years the diversity of traditions and values of the contracting states, and that Article 2 of the Convention also extended protections to foetal life.

The application by the three women, he said, was an attempt to undermine these two fundamental principles, and to adapt Ireland's laws to other signatory countries.

Mr Gallagher said that since the X Case in 1992, the Government had not let matters rest. There had been a constitutional review, an Oireachtas Committee and a referendum, all charged with trying to identify the issues raised by the X Case and to look at the options.

He said the suggestion that the women's health and human rights under Article 8 of the Convention were denied was 'a significant attack' on the Irish health system and its treatment, advice and support.

He said the claims made by the individual women over how they were treated when they became pregnant were not substantiated by evidence from doctors.

Applicants' argument

Addressing the court on behalf of the applicants, Julie Kay SC described the individual cases of the three women.

Applicant A was unemployed, single, living in poverty, had been suffering from substance abuse and suffered severe post natal depression. She had other children in care and was concerned that if she gave birth again she may not get her other children back from the State.

Applicant B had taken a morning after abortion pill and was worried that it could lead to an ectopic pregnancy.

Applicant C was in remission from cancer but could not find a doctor to give her any advice on whether the chemotherapy treatment she had undergone would damage the foetus.

The only option for the three women, she said, was to go outside the State for a 'clandestine' abortion.

They had to borrow money from friends or a money lender to travel.

This conflicted with the minimum protection afforded under Article 8 and 14 of the European Convention on Human Rights, she said.

Ms Kay said none of the committees and green papers had changed the legal status of abortion in Ireland since the X Case.

She said the Government's claim that abortion was technically available in Ireland in extreme life-saving cases was bogus when it was realised that a doctor would lose his licence or face potential life imprisonment if a termination was later found to be unnecessary.

Nor were there any statistics provided on how many of these 'legal' abortions in Ireland had taken place.

She said there was no effective remedy in the Irish courts since the requirement for a losing party to pay the State's costs was prohibitive.

Ms Kay said the Government's reference to the Lisbon Treaty was irrelevant.

She said the three women had faced indignity, stigmatisation and ill-health as a result of having to travel abroad for their abortions.

The European Court of Human Rights is separate from the EU, but because Ireland is a signatory to the European Convention on Human Rights it is obliged to implement its decisions.

It is the first time an Irish case has been heard in the Grand Chamber since the David Norris case in 1988.

The court is expected to deliver a verdict within a few months.

In 2007, it ordered Poland to pay compensation to a woman who nearly went blind after being denied an abortion.


Story from RTÉ News: http://www.rte.ie/news/2009/1209/abortion.html

The Independent: Seeking an 'illicit' solution carries an emotional cost

December 10, 2009
by Ann Furedi

Irish women naturally expect to be able to lead modern lives. They expect to be educated and to have the chance to work; they expect to be able to plan their families; they expect to enjoy sex without fear of pregnancy. And, as contraception can't always be relied on, this means they need access to safe legal abortion, just as we do in Britain.

Something seems unfitting when the European Court challenges the right of a nation to set its own laws. Democracy and the right of nations to self-determination are principles that we abandon at our peril. But when a country fails to address issues that undermine the health and wellbeing of its own citizens, it needs to hear the voices of those beyond its boundaries.

The organisation that I work for, the British Pregnancy Advisory Service, hears the voices of Irish women all the time. We see hundreds of women every year who have travelled over to end crisis pregnancies. Nothing obvious marks them from out from our English clients, except sometimes their accents. But, whether they acknowledge it or not (some do, some don't) they carry an additional burden of knowing that, in their own homeland, abortion is illegal.

The illegality of abortion at home has consequences even for those women wealthy enough, organised enough and informed enough to travel. It means they have limited opportunity for advice and counselling before they come here, and little access to support and aftercare when they return home. They carry the emotional burden of seeking an "illicit" solution, and the financial cost. The practical arrangements often means their treatment is delayed. Many suffer needless anxiety because, when abortion is unlawful, it can be hard to know facts from myths.

The truth needs to be heard. Legal abortion is safe and benefits society. And Ireland can only exist as a modern society because of abortion clinics in England. We are the safe, civilised alternative to clandestine, illegal abortion treatments, to abandoned infants and the burdens of forced motherhood.

Women in Ireland have abortions but they have them here, while politicians turn away.

Abortion is a fact of life for women in Ireland. And the Irish Government needs to face that fact.

Ann Furedi is chief executive of the British Pregnancy Advisory Service

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Sky News: Fear Of A Return To The Backstreet Abortion

Thursday December 10, 2009

Paul Harrison, Sky News reporter

A woman who for years has helped Irish women seek terminations in the UK has warned that the credit crunch could bring about the return of "medieval" backstreet abortions.

Ann Rossiter, herself forced into having an illegal abortion, made the claim as three woman challenged Ireland's historic laws at Strasbourg's European Court of Human Rights.

"Travelling to the UK costs money and at the moment many students and older pregnant women don't have the funds they once had," explained the author of Ireland's Hidden Diaspora: The Abortion Trail.

"In my case my health was severely damaged. It was medieval torture. A return to the days of backstreet abortions will happen as long as the law remains unchanged."

Since abortions became legal in Britain in 1967, 150,000 women from the Republic and Northern Ireland have made the journey to the UK.

They would stay at homes like the one now owned by Ann in London.


Abortion is illegal in Ireland

"Low-budget airlines did a lot to help those escaping draconian laws, but there was always the fear or embarrassment of seeing someone they knew at the airport," she told Sky News.

"When they arrived they'd have a bed for the night. They would be scared and we did all we could to make them comfortable. The following day they would fly home."

The need to stay in for observation after an abortion was soon abolished by the NHS, meaning women would mainly fly in and out in a single day.

"But now that money is tight many are choosing the cheaper, late-night flights, meaning that many are starting to stay overnight again."

Fearing the law is not about to change any time soon, Ann's spare bedrooms are made up and ready.

Ireland's Hidden Diaspora: The Abortion Trail and The Making of a London-Irish Underground, 1980-2000 is distributed by IASC.

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Irish Times: 'Moral values' of abortion law defended

by CARL O'BRIEN Chief Reporter in Strasbourg

Thu, Dec 10, 2009

GOVERNMENT'S CASE: THE GOVERNMENT robustly defended Ireland’s abortion restrictions at the European Court of Human Rights yesterday, insisting they are based on “profound moral values embedded in Irish society”.

The case involves three women, known as A, B and C, who say their inability to get an abortion in Ireland jeopardised their health and violated their human rights. In a hearing which could have implications for Irish abortion law, Attorney General Paul Gallagher insisted the country’s legal position on abortion had been endorsed in three referendums, as well as safeguarded in protocols attached to the Maastricht and Lisbon treaties.

Mr Gallagaher said the European Convention on Human Rights has recognised the diversity of traditions and values of countries which are signatories to the convention over the past six decades. The convention also extended protection of human rights to unborn children.

However, Mr Gallagher said this challenge sought to undermine these fundamental principles and align Ireland with countries with more liberal abortion laws.

Criticising the nature of the case taken by the three women – who are supported by the Irish Family Planning Association – Mr Gallagher said their case was based on “legal and factual propositions which, when analysed, cannot be supported.” The fact that the women’s cases had not been heard before the domestic courts meant key facts relating to their case – many of which were of an assumed and conditional nature – had not been properly tested. “Many of these facts are of an assumed nature … if these issues are to come before this court, it should be on the basis of established facts.”

He also questioned the women’s claims that their rights were violated due to poor provision of post-abortion counselling and medical support. This amounted to a “significant attack on the Irish system, on the medical treatment available, on the advice available and the support available to people” in crisis pregnancies.

The State-funded Crisis Pregnancy Agency provided a unique service in Europe and it was unfair to have its reputation denigrated, senior counsel Donal O’Donnell, also for the State,told the court.

The State rejected suggestions by the women’s legal team that abortion law was unclear and insisted the Constitution clearly stated that abortion was lawful in the circumstances of the X case, where the life of the mother is at risk.

“These grounds will rarely arise, but where there is a possibility of a risk to the life of the woman, physically or medically, there is a clear and bright line rule [provided by the Constitution] that is neither difficult to understand nor to apply,” Mr O’Donnell said.

There were detailed Medical Council guidelines available to doctors which set out the proper response for women presenting in these circumstances, he added.

Mr O’Donnell rejected assertions in legal submissions for the women that there was a move toward greater public support for liberalising Irish abortion law, and insisted such claims were based on the “fragments of opinion polls.”

On the failure of the Government to legislate for the provisions of the X case, he said the Government has taken the issue of abortion extremely seriously, as evidenced by a total of five referendums over 25 years, as well as Oireachtas committee reports and a constitutional review group. In conclusion, he said, the “law may be restrictive, but the law is clear, it is well-known and it is applied. What is not clear is how the situation will be improved if we had permanent and rigid legislation.”

The Attorney General and Mr O’Donnell were part of an eight-strong legal team which included senior counsel Brian Murray, as well as four legal advisers, Christine O’Rourke, Geraldine Luddy, Sarah Farrell and Bernadette McDonnell. The court adjourned yesterday following the hearing and a judgment is expected within the next six to eight months.

Based in Strasbourg, the court, which is separate from the EU, adjudicates on human rights issues among all 47 member states of the Council of Europe.

© 2009 The Irish Times

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Belfast Telegraph: Republic of Ireland defends its strict abortion laws

Thursday, 10 December 2009

The Irish government has robustly defended the Republic's restrictive abortion laws before the European Court of Human Rights.

Yesterday Attorney General Paul Gallagher SC told the court's 17-judge Grand Chamber in Strasbourg that a landmark challenge by three women was a "significant attack" on the Irish health system, its treatment advice and support. The women — known as A, B and C — claim their health and human rights were violated because they had to travel to Britain to terminate their pregnancies.

However, Mr Gallagher said that the case by the women was an attempt to make Ireland's abortion laws more liberal — like they are in other European countries.

"The right to life of the unborn is based on profound moral values deeply embedded in the fabric of Irish society," he told the court, including Irish High Court Judge Mary Finlay Geoghegan.

If the abortion case succeeds, it could lead to abortion being made available here in certain circumstances. The court may dictate the minimum degree of protection to which a woman seeking an abortion to safeguard her health and wellbeing is entitled.

Mr Gallagher said that Ireland's protection of the right to life of the unborn had been endorsed in three referenda and was explicitly recognised in a protocol attached to the Maastricht Treaty. Ireland had also secured a relevant legal guarantee as part of the re-run of the Lisbon Treaty.

Defending the government's record, Mr Gallagher said that it "had not let matters rest" since the infamous X case in 1992 — when a court banned a pregnant 14-year-old rape victim from travelling abroad to have an abortion. That restriction was later lifted.

Lawyers acting for the three women, who did not attend yesterday's hearing, said the trio were forced to travel for "clandestine abortions" abroad, and were forced to borrow money to pay for the procedures. Julie Kay, lead counsel for the women, said this conflicted with the minimum protection afforded under Article 8 and 14 of the European Convention on Human Rights.

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Politico.ie: Historic challenge to Ireland’s abortion laws brought to Europe

Wednesday, 09 December 2009
by Deirdra O'Regan

Today, the European Court of Human Rights (ECtHR) Grand Chamber, which consists of 17 judges, will hear a controversial landmark case on abortion, the outcome of which will have significant implications, both for the Irish state and Europe. The case involves a challenge to Ireland's ban on abortion, lodged with the ECtHR in August 2005 by three women resident in Ireland.

The women, known as A, B and C to protect their identity, were forced to travel overseas to obtain abortions, in the process incurring expenses and enduring unnecessary hardship. Each of the women was experiencing difficulties with her pregnancy; collectively they contend that Ireland has breached their human rights under a number of articles of the European Convention on Human Rights (ECHR).

This case is the first direct challenge to Irish abortion law by a group of women. The ECtHR, which is based in Strasbourg and is separate from the European Union, adjudicates on human rights issues among all 47 member states of the Council of Europe. While the European Court of Human Rights does not have the authority to amend Irish law, it can find Ireland to be in violation of the human rights convention. If this were to happen, Ireland would be face significant pressure to comply with its obligations under the convention.

This case is also highly unusual in that it has received such significant attention and input internationally. Although the applicants are supported primarily by the Irish Family Planning Association, the American women’s organisation, ‘Legal Momentum’, is also providing legal counsel to the women. On the Government's side, a number of non-Irish third-party interveners describing themselves as ‘dedicated to the sanctity of human life’ have become involved in the litigation. The interveners include the 'Alliance Defence Fund' on behalf of the US Family Research Council and the London based 'Society for the Protection of Unborn Children'.

Background to the Case

All three women submitting the case to Strasbourg decided to travel to England to have an abortion.

* Applicant A ran the risk of an ectopic pregnancy, where the foetus develops outside the womb. She had taken emergency contraception 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 of an ectopic pregnancy.
* Applicant B had undergone chemotherapy for cancer treatment. She was unable to find a doctor willing to make a determination about 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.
* Applicant C is a woman whose four children had been placed in foster care as a result of problems she faced as an alcoholic and because she was unable to cope, was unmarried, unemployed and living in poverty.

The applicants argue that their human rights are being violated under Article 8 of the ECHR which relates to the right of privacy in all family, home and personal interests, and entitlement to no public interference from any public authority in exercising this right. They also allege a breach of:

* Article 2, which protects the life of an individual. They contend that the Irish Government has provided no clear guidance as to when abortion may be legally carried out under the ‘X’ case, where termination of pregnancy is necessary to save a woman’s life.
* Article 3, which protects individuals from inhuman or degrading treatment. The women argue that the criminalisation of abortion harms women by stigmatising them and can result in difficulty in accessing necessary follow up care.
* Article 14, which affords rights and freedoms without discrimination. The women argue that Irish abortion law discriminates on the basis of sex and financial status. Women are treated differently from men in making decisions concerning their private and family life, and the ban imposes particular burdens on economically disadvantaged women and those who have difficulty travelling because of their age or legal status.

The court will also look for information on what exact procedures are in place where a pregnancy poses a risk to the life of the mother, and the course of action a woman must undertake to pursue a lawful abortion in Ireland.

The Irish Times recently reported on the Government’s position in this case. In papers filed with the court and seen by the newspaper, the Government has indicated it will launch a forceful defence of the State’s restrictions on abortion. Government contends that it is "Ireland's sovereign right to determine when life begins" and what rights attach to pre-natal life. However, the central contention of its defence is that domestic legal remedies have not been exhausted by the women.

Likely Outcome

The biggest challenge facing the applicants in this case is indeed the issue of admissibility. In 2006, the ECHR ruled the case of D v. Ireland was inadmissible on the ground that the applicant had failed to exhaust domestic remedies. Miss ‘D’, a 17 year old woman with an anencephalic pregnancy argued that Ireland's ban on abortion in the case of fatal foetal abnormalities violated Articles 1, 3, 8, 20, 13 and 14 of the European Convention on Human Rights. In 2007 the Irish High Court ruled that she had the right to travel for an abortion.

While it is entirely possible that ABC v Ireland may suffer the same fate of inadmissibility as D v Ireland, the cases fundamentally differ in that A, B, and C were not facing the unique predicament of Ms. D. The purpose of ABC v Ireland is to directly challenge Ireland's general prohibition of abortion, rather than make an inroad through a particular exception, as in the ‘D’ case. This central difference may persuade the ECtHR that A, B, and C could not have found sufficient recourse in the Irish courts because of the general ban on abortion, whereas in the ‘D’ case, the Irish government recognised the possibility of an exception for very exceptional circumstances.

However A, B and C will argue that the lack of any effectual remedy in Ireland means they have fulfilled the requirement to exhaust domestic legal remedies. They say the "case would have been costly, futile and could have forced them to relinquish their anonymity".

Despite the question over admissibility, based on the merits of the case alone A,B and C will almost definitely win.The court does grant a "wide margin of appreciation" with regards to determining abortion law. This means that the court has reviewed the approaches of all European states and found that states have adopted vastly different approaches which range from conservative to liberal, therefore it is more ‘lenient’ with regards to various state’s abortion legislation. For this reason, it is improbable that the court will rule that Irish law breaches the convention by disallowing abortion on health grounds.

However, the Irish women's application will succeed as it involves a claim that the operation of a state's abortion law in practice is incompatible with the the convention. The precedent for this was set in 2007 when the ECtHR held in Tysiac v. Poland that every state has a positive duty to secure respect for a person's physical and psychological integrity. This ruling was in relation to a case taken by a Polish woman who claimed that Poland had violated her right to physical integrity under the convention by failing to provide her with access to a therapeutic abortion. Under Poland's abortion law, abortion is permitted under certain exceptions, such as a risk to a woman's life or health. The applicant sought an abortion because the birth threatened her limited eyesight. A doctor certified that the pregnancy was a threat to the woman's health. However, another doctor disagreed and no abortion was performed. After the birth of the child, it was discovered that the woman's eyesight had deteriorated and there was a risk of blindness. The court ruled that Poland had breached the woman's right by failing to implement procedural safeguards regarding access to a therapeutic abortion. The court decided that the law must, first and foremost, ensure clarity of the pregnant woman's legal position.

Dr Adam McAuley a lecturer and specialist in international human rights law in the School of Law and Government at Dublin City University, believes the three Irish women will succeed "because Irish abortion law is in a worse state than the invalid Polish law”. Dr McAuley further argues: “Ireland can settle the case by undertaking to propose legislation reflecting the approach set out by the European court in the Polish case. Such legislation would clarify the operation of the law for women and the medical profession. Surely, this is a better approach than fighting a case that Ireland looks certain to lose.”


'Rogue' Crisis Pregnancy Counselling Agencies

One of the most significant amendments to abortion law in the history of the state is the Regulation of Information (Services outside the State for the Termination of Pregnancies) Act 1995. The Act allows certain individuals to give information on abortions services abroad should a woman request it, provided the information is imparted along with information on parenting and adoption and given in the context of one to one counselling.

However, many of the ‘counselling’ services which have sprung up since the institution of the Act have met with controversy.

Various investigations into ‘rogue’ pregnancy counselling agencies have revealed unethical and often disturbing practices, particularly in relation to giving women inaccurate information about the availability and consequences of abortion. An undercover report by Choice Ireland, a pro-choice organisation, revealed certain ‘counselling’ providers told lies such as:

* It is impossible to have an abortion before two months, “because the baby parts are so small that they get left inside the mother and the mother could die”.
* Having an abortion can cause a quadrupled risk of breast cancer.
* Having an abortion can cause promiscuity and frigidity.
* Having an abortion can cause child abuse.

On 1 December, Choice Ireland appeared before the Oireachtas Joint Committee on Health and Children to present the results of its investigation into rogue crisis pregnancy agencies operating in Ireland and to call on the government to regulate the activities of these groups.

Committee members generally agreed that a regulatory framework should be introduced to regulate crisis pregnancy counselling services and that 'rogue' agencies were objectionable.

Sinead Ahern, spokeswoman for Choice Ireland, said the primary aim of such agencies was to prevent a woman with a crisis pregnancy from having an abortion. Though they advertised themselves as mainstream pregnancy counselling services, they used “lies and intimidation” as well as showing graphic videos and distressing images of foetal remains to “very vulnerable women”.


The reality of abortion in Ireland

Although Ireland has relaxed its position on other controversial social issues, such as divorce and homosexuality, it remains the only western country, except for Malta, where abortion is virtually banned by both law and the constitution. Ireland’s abortion legislation is exceptionally restrictive by international standards, allowing for abortion only when the life of the woman is in danger. In practice, however, due to ambiguity about when a physician may legally perform a life-saving operation, abortion is unavailable in virtually all circumstances. Irish legislation also fails to make any provision for a woman who is pregnant as a result of rape or incest, at risk of permanent bodily harm such as blindness, diabetes, kidney or heart disease or experiencing a severe foetal abnormality. This is despite the fact that Ireland has the second highest rate of neural tube defects in the world.

Official figures reveal that over 7,000 women each year travel from Ireland to England for abortions. This figure is based upon the number of women providing Irish addresses and vastly underestimates the actual number of women travelling, many of whom give false addresses in England or travel to other countries like Belgium and the Netherlands.

Recent studies have shown that restricting the availability of legal abortion does not appear to reduce the number of women seeking terminations, a major report suggests. The Guttmacher Institute's survey found abortion occurs at roughly equal rates in regions where it is legal and regions where it is highly restricted. The study further noted that improved access to contraception leads to cuts in overall abortion rates.

In July of last year, Ireland was examined by the UN Human Rights Committee under the International Covenant on Civil and Political Rights. The Committee identified Ireland’s abortion regime as an area of concern, stating that Ireland ’should bring its abortion laws into line with the [ICCPR]. It should take measures to help women avoid unwanted pregnancies so that they do not have to resort to illegal or unsafe abortions that could put their lives at risk or to abortions abroad’. However, Government have, as of yet, failed to take any steps to do so.

Prompted by the current case, Dr. Gill Greer, Director-General of the International Planned Parenthood Federation, of which the IFPA is a member, said “the Irish Government is not only going against the global trend to legalise and liberalise abortion laws, they are going against the majority of their own citizens whom recent opinion polls show to be broadly in favour of liberalizing the law.”

Exactly 9 years ago today, an article appeared in the economist entitled “Ireland's sad and confusing secret; Ireland's confusion over abortion". The author observed that “the current regime, which affirms the right of Irish women to undergo the procedure in England but virtually outlaws it in Ireland, in a strange way reflects the confused state of public opinion.” Very little progress has been made in clarifying abortion legislation since then and it would appear the issue is as confused as ever. The article also cites an instance where Bertie Ahern, then Taoiseach, told a pro-referendum group (who were campaigning for a further tightening of abortion law) of his understanding and sympathy but confessed that proceeding with a ballot could bring down his coalition. Arguably, current government are in a much more precarious position, however increased awareness of international law and the ever increasing influence of Europe may mean that inaction is no longer an option.


Legal History of Abortion in Ireland

1861: Offences against the Person Act 1861 makes abortion a criminal offence in Ireland. These criminal laws remain on the Irish Statute books and are interpreted to criminalise abortion in all circumstances. Subsequent amendments to the Constitution and court cases have interpreted further the dimensions of abortion, however, the 1861 Act remains the basis of criminal law on abortion in Ireland.

1983: Referendum on the Eighth Amendment of the Constitution is passed after a bitterly contested campaign. 53.67% of the electorate voted with 841 233 votes in favour and 416 136 against. Article 40.3.3 of the Constitution is amended to protect 'the right to life of the unborn'

1988: Ban on dissemination of abortion information from the Supreme Court, but it is appealed.

1991: The European Court of Justice rules that abortion could constitute a service under the Treaty of Rome (Treaty of the European Economic Community) and therefore a Member State could not prohibit the distribution of information by agencies having a commercial relationship with foreign abortion clinics, overturning the 1988 ban.

1992: The infamous ‘X’ case: Under Article 40.3.3 of the Constitution of Ireland, Mr Justice Costello grants a High Court injunction preventing a 14 year old, pregnant as a result of rape, from travelling to Britain for an abortion. In November of 1992, two referendums passed which amend Article 40.3.3 and allow the freedom to travel outside the State for an abortion and the freedom to obtain or make available information on abortion services outside the State, subject to conditions. Also, in the case of Open Door and Well Woman v Ireland, the European Court of Human Rights rules that Ireland violated Article 10 of the European Convention on Human Rights by preventing Open Door and Well Woman receiving or imparting information on abortion services legally available in other countries.

1995: The Regulation of Information (Services outside the State for the Termination of Pregnancies) Act 1995 is enacted. The Act allows doctors, advisory agencies and individual counsellors to give information on abortions services abroad should a woman request it. However, the Act requires any information on abortion services be provided along with information on parenting and adoption and may only be given the context of one to one counselling.

1996: The Constitution Review Group recommends the introduction of legislation covering matters such as definition of the "unborn", protection for appropriate medical intervention, certification of "real and substantial risk to the life of the mother" and a timeframe for lawful abortion.

1997: A 13 year old girl, known as Miss C, is raped and becomes pregnant. The Eastern Health Board takes C into its care and in accordance with the girl's wishes, obtains orders from the District Court to take C abroad for an abortion. C's parents challenge these orders in the High Court case A and B v Eastern Health Board. The court rules that, as Miss C was likely to take her own life if forced to continue with the pregnancy, she was entitled to an abortion in Ireland by virtue of the Supreme Court judgement in the 1992 X Case.

1999: A cabinet committee chaired by Brian Cowen, Minister for Health and Children, publishes the Green Paper on Abortion prepared by an Interdepartmental Working Group. A ‘discussion’ document rather than a policy document, the Green Paper aims to set out the issues surrounding abortion, provide a brief analysis and to consider possible options available.

2000: An All-Party Oireachtas Committee on the Constitution, chaired by Brian Lenihan, publishes its Fifth Progress Report and fails to reach consensus. The 700 page document is a political assessment of the issues raised in the Green Paper on Abortion, submissions received and hearings conducted. The views of women who have had abortions were not heard. The Committee fails to reach a political consensus on the substantive legal issues of abortion but agrees on a strategy to reduce the number of crisis pregnancies. The report further recommends the establishment of a dedicated agency under the Department of Health and Children to implement the strategy.

2001: Plans are formed for a referendum to allow abortion where a woman's life is at risk from pregnancy, but not suicide.

2002: The referendum is held. Irish voters reject the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2002 which would remove threat of suicide as a ground for abortion and increase the penalties for helping a woman have an abortion. Voter turn out is 42.89% of total electorate. 50.42% vote against. 49.58% vote in favour.

2004: A study by the Crisis Pregnancy Agency finds that nearly one in three woman had experienced a crisis pregnancy.

2005: Pro-Life Campaign says it intends to lobby for another referendum 'to restore legal protection to the unborn' while the Irish Family Planning Association launches campaign to demand legal abortion services in Ireland.

2006: European Court of Human Rights rules D v Ireland inadmissible because the case did not go through the Irish Courts. The Irish Government relies on the argument that in the Applicant's particular circumstances, she could have been legally entitled to an abortion in Ireland should she have gone through the Irish courts system. The Applicant, known as D, argued that Ireland's ban on abortion in the case of fatal foetal abnormalities violated Articles 1, 3, 8, 20, 13 and 14 of the European Convention on Human Rights. Also, the largest survey on sexual health in Ireland finds that 64% of people see abortion as acceptable in certain circumstances.

2007: A 17-year-old woman known as Miss ‘D’ with an anencephalic pregnancy(Invariably fatal, an anencephalic pregnancy means the foetus has virtually no brain and most of the skull is missing) goes to High Court to force the Health Service Executive to allow her to travel to obtain an abortion. The High Court rules that she has a right to travel.


More Information

Choice Ireland, a non-funded pro-choice activist organisation has written to all the Irish political parties to ask under what circumstances, if any, they would allow legal abortion in Ireland. The replies are available here.

The IFPA's report on rogue pregnancy counselling agencies can be accessed here.

The Irish anti-abortion/pro-life campaign can be accessed here.

LINK: http://www.politico.ie/index.php?option=com_content&view=article&id=6060:historic-challenge-to-irelands-abortion-laws-brought-to-europe&catid=40:politics&Itemid=877

Irish Times: Irish abortion laws defended

by CARL O'BRIEN, in Strasbourg

Wed, Dec 09, 2009

The Government has issued a robust defence of Ireland’s restrictions on abortion at the European Court of Human Rights today.

The case involves three women, known as A, B and C, who say abortion restrictions in this country have jeopardised their health and violated their human rights.

In a hearing which could have implications for Irish abortion law, the Attorney General Paul Gallagher insisted that the country’s abortion laws were based on “profound moral values deeply embedded in Irish society”.

Mr Gallagher said the country’s legal position on abortion had been endorsed in three referendums, as well as being safe-guarded in protocols attached to the Maastricht and Lisbon treaties.

He said that the European Convention on Human Rights has recognised over 60 years the diversity of traditions and values of the member states, as well as extending protection to unborn children.

However, the case being taken by the three women sought to undermine these fundamental principles and align Ireland with other countries with more liberal abortion laws.

The Attorney General was part of an eight-strong legal team, including senior counsel Dónal O’Donnell and Brian Murray, as well as four female legal advisors.

Criticising the nature of the case taken by the three women – who are supported by the Irish Family Planning Association – Mr Gallagher said their case was based on “legal and factual propositions which, when analysed, cannot be supported”.

He said the fact that the cases involving the three women had not been before a domestic court meant the facts of case had not been established.

In addition, he said, many these facts were of an assumed and conditional nature, such as a woman not going to a doctor because she feared treatment would not be available.

“Many of these facts are of an assumed nature… if these issues are to comet before this court, it should be on the basis of established facts.”

The court, which is separate from the EU, adjudicates on human rights issues among all 47 member states of the Council of Europe.

As a signatory to the European Convention on Human Rights – now incorporated into Irish law – the Government is obliged to seek to implement whatever decisions are made by the courts.

If successful, the court’s ruling could lead to the liberalisation of the State’s abortion laws. At present, abortion is only permitted in the circumstances of the “X” case, where there is a real and substantial risk to the life of the mother.

The three women at the centre of the case include a woman at risk of an ectopic pregnancy, where the foetus develops outside the womb; a pregnant woman who received chemotherapy for cancer; and a woman whose children were placed in care as she was unable to cope.

The women, who have sought to have their anonymity protection, were not in court. They were represented by counsel Jule Kay and senior counsel Carmel Stewart

Addressing the court, Ms Kay said said the lack of any effective remedy in Ireland meant the women had been forced to have their cases heard before the European Court of Human Rights. She said taking a case domestically would have been costly, futile and could have forced them to relinquish their anonymity.

Ms Kay contested the Government's claim that abortion was legal 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 has failed to produce any legislation for doctors or medical practitioners on this issue.

As a result, doctors were not prepared to intervene for fear of losing their medical licences or facing potential life imprisonment is the termination was later found to be unlawful or unnecessary.

She said it was highly significant that the State had no statistics to show how many, if any, of these lawful abortions have taken place in Ireland.

© 2009 irishtimes.com

LINK: http://www.irishtimes.com/newspaper/breaking/2009/1209/breaking38.htm

Cork Councillor Mick Barry Supports ABC

Socialist Party councillor Mick Barry this morning voiced support
for the three Irish women challenging Ireland's abortion laws at the
European Court of Human Rights.

The three women - A,B and C - say that their health was put
at risk by being forced to go abroad for abortions. One of the women
ran the risk of an ectopic pregnancy, one received chemotherapy for
cancer and one had had her children placed in care as she was unable
to cope.

They argue that the current restrictions on abortion, as well as
a lack of post-abortion care and counselling, amounts to a violation
of their human rights.

Cllr Barry said today: "I think that these are three brave
women. I do not think that they should have to discuss the intimate
details of their lives in a foreign courtroom in order to win access
to abortion facilities in their own country when those facilities are
needed to protect their health. The failure of successive Governments
to legislate for abortion facilities to protect the health of Irish
women is simply not acceptable."

He added: "Abortion is an Irish reality and the State's decision
to force Irish women to go abroad for abortions endangers women's
health and discriminates against working class women. It endangers
women's health insofar as it increases the likelihood of late
abortions and puts women under further stress at a time of crisis. It
discriminates against working class women in the sense that it puts
women on lower incomes under massive financial pressure to go abroad
and spend more than a thousand euro."

RESS RELEASE BY THE IRISH FAMILY PLANNING ASSOCIATION

Wednesday, 9th December 2009

IRELAND’S DRACONIAN ABORTION LAWS PUT UNDER THE SPOTLIGHT AT HUMAN RIGHTS COURT

The European Court of Human Rights, today (9/12/09), heard a challenge to Ireland’s restrictive laws on abortion.

Three women living in Ireland challenged Ireland’s ban on abortion on the grounds that the law jeopardised their health and their wellbeing in violation of their rights under the European Convention on Human Rights.

The Irish Family Planning Association (IFPA) which is providing support to the three applicants, welcomes the decision by the European Court of Human Rights to hear their case in the its most important forum, the Grand Chamber.

The IFPA wishes to commend the bravery of three applicants in taking a case to the European Court of Human Rights, particularly given the unhelpful nature of abortion discourse in Ireland. The three applicants have waited over five years to have their voices heard at this important forum for the protection of human rights and are looking forward to having their human rights vindicated.

According to the IFPA, today is a hugely significant day for reproductive rights in Ireland. The fact that Ireland’s draconian laws on abortion have been put under the spotlight at this important human rights arena is a landmark for women living in Ireland.

Ireland's restrictions on abortion violate international human rights norms because they inflict such grievous harm to women's health and well-being. The IFPA believes that women and girls’ rights are disproportionately infringed upon by the inaccessibility and criminalisation of safe and legal abortion services in Ireland.
The IFPA is confident that when the Court issues its judgment it will establish a minimum degree of protection to which a woman seeking an abortion to protect her health and well-being would be entitled.

Ireland’s restrictive laws on abortion are totally out of step with those of its European neighbours. Forty four out of 47 European countries provide for abortion to protect women’s health. The overwhelming consensus throughout Europe allows for some access to legal abortion to protect a woman’s health and well-being, applying a more effective, less punitive approach than that which is in force in Ireland. The IFPA believes that women and girls do not give up their human rights when they become pregnant nor should the State take these human rights away with impunity.
The experiences of the women, known as A, B and C, are illustrative of the reality faced by thousands of women in Ireland. Since 1980, at least 138,000 women have been forced to travel abroad to access safe abortion services, enduring unnecessary and unjustifiable physical, emotional and financial hardship.

The IFPA believes that abortion is an intimate aspect of private life, intricately linked with human rights values and principles that protect a woman's sexual and reproductive rights.

Complex court cases where women and girls are cruelly compelled to disclose the most intimate aspects of their life in the public arena in order to receive appropriate health care, albeit in another country, are deplorable avenues for the delivery of medical services.

This case has highlighted in an international forum the Irish Government’s unwillingness to address the reality of women’s lives and health in Irish law and policy.

ENDS

Notes to Editor:
Three applicants lodged a complaint to the European Court of Human Rights in August. The women, known as A, B & C to protect their confidentiality, contend that Ireland has breached their human rights under Articles 2 (Right to Life), 3 (Prohibition of Torture), 8 (Right to Respect for Family and Private Life) and 14 (Prohibition of Discrimination) of the European Convention on Human Rights.
In Ireland, abortion is criminalised under the Offences against the Person Act of 1861, which threatens women who ‘unlawfully procure a miscarriage’ with life imprisonment.

Abortion is legal in Ireland when there is a real and substantial risk to the life of the pregnant woman this includes the risk of suicide. The current legal provisions do not allow for lawful termination of pregnancy when the woman’s health is at risk, where the pregnancy is a result of rape or/and incest, where the foetus will not survive outside the womb or where the pregnant woman decides that continuation of the pregnancy is not in her or her family’s best interests.
It is not against the law for women to travel abroad to access abortion services or access information on safe and legal abortion services in other countries from an Irish service provider.

Opinion polls and research consistently show increased support for access to abortion. A 2004 Crisis Pregnancy Agency study found that 90% of 18-45 year olds support abortion in certain circumstances, with 51% stating that women should always have to right to choose an abortion. In 2007, an Irish Times Behaviour and Attitudes Poll found that 54% of women believe the Government should act to permit abortion.