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