By Dearbhail McDonald Legal Editor
Monday December 07 2009
THE Government is to defend Ireland's controversial abortion ban in a landmark case this week in the European Court of Human Rights.
And if Ireland is found to be in violation of the European Convention on Human Rights it may lead to the introduction of abortion here in limited circumstances.
Attorney General Paul Gallagher will lead an eight-strong legal team to Strasbourg to defend the ban.
The European Court of Human Rights (ECHR) will sit on Wednesday to hear the action brought by three Irish women in a ruling that could have European-wide implications.
The case has been taken by three women identified as A, B and C, who claim their health was put at risk by being forced to go abroad for abortions.
In an indication of how robustly the State will defend Ireland's ban, Mr Gallagher has engaged two of the country's leading constitutional lawyers, Donal O'Donnell SC and Brian Murray SC.
If successful, the case could establish the minimum degree of protection to which a woman seeking an abortion to safeguard her health and wellbeing would be entitled under the European Convention on Human Rights.
And it may, if Ireland is found to be in violation of the convention, lead to abortion being available here in certain circumstances.
Abortion is criminalised under the Offences against the Person Act of 1861, which threatens women who 'unlawfully procure a miscarriage' with life imprisonment.
The Supreme Court ruled in the 1992 'X Case', which convulsed the country, that abortion is permitted where there is a real and substantial risk to the life of the mother (including the risk of suicide), as distinct from her health.
But successive governments have shied away from introducing laws to give effect to the ruling or clarify the legal status of the unborn, leading to problems in other areas such as IVF.
The Irish ban will be interpreted in light of a recent abortion case which found against Poland.
The case, Tysiac vs Poland, imposed an obligation on states to provide effective procedures for women to obtain abortions that are legal under national law, signalling that, at the very least, the Government may be obliged to legislate for the X case.
Mr Gallagher, who may personally appear as an advocate before the court, is expected to argue that Ireland is entitled to rely on the "margin of appreciation doctrine" which is often used in cases involving sensitive domestic legal issues.
This doctrine affords a range of discretion to individual member states in the interpretation of convention law and allows the ECHR to take into effect the fact that the convention will be interpreted differently in different signatory states.
The women, supported by the Irish Family Planning Association (IFPA), will argue that the ban violates a key right under the convention.
The women lodged a complaint to the European Court of Human Rights in August 2005, contending that the Republic of Ireland 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.
Senior counsel Carmel Stewart is representing the women, assisted by the IFPA's legal consultant, Julie Kay.