Thursday, December 10, 2009 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.