Thursday, December 10, 2009

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