In July of last year, Ireland was examined by the UN Human Rights Committee under the ICCPR. The Committee identified Ireland’s abortion regime as an area of concern. It stated in its Concluding Observations 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 lifes at risk or to abortions abroad’. As yet, the Government has taken no steps to do so. On Friday, October 16 the Irish Family Planning Association and the Women’s Studies Centre, UCD School of Social Justice will revisit this and other matters in a conference entitled ‘Building the Reproductive Justice Movement’ at the Morrison Hotel, Dublin 1. The keynote speakers will be Dr. Ruth Fletcher of Keele University and Loretta Ross of SisterSong, USA. The IFPA is 40 years old this year. But 2009 might be an important year for reproductive rights in Ireland for other reasons. On December 9, the Grand Chamber of the European Court of Human Rights will hear A, B and C v. Ireland; a challenge to Ireland’s ban on abortion.
The Association for Women’s Rights in Development gives the background to the case:
All three women submitting the case to Strasbourg decided to travel to England to have an abortion. The group includes a woman who ran the risk of an ectopic pregnancy, where the fetus develops outside the womb. 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. Another of the women 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 fetus might have been affected. The third woman, whose four children were 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.
As a group, these women represent many of those who are worst affected by our restrictive abortion laws: women on low incomes and women who encounter medical difficulties during pregnancy. Women in the control of the state, particularly refugees, asylum seekers and undocumented migrants, and young women like 2007′s Miss D also face particular difficulties in accessing abortion.
A, B and C represents the ‘litigation strand’ of the Safe and Legal In Ireland Abortion Rights Campaign. The Campaign website, which boasts an excellent batch of resources on Irish abortion law and policy, summarises the women’s case under the ECHR as follows:
ABC v Ireland involves three Irish women bringing the court case to the ECHR are arguing that their human rights are being violated under Article 8 which relate 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 3, which protects individuals from inhuman or degrading treatment. The women argue that the criminalisation of abortion harms women by stigmatising them and increasing feelings of guilt, and can result in difficulty in accessing necessary follow up care.
Article 2, which safeguards the life of an individual. 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 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 three Irish women argue that these articles of the European Convention on Human Rights are being flouted by forced travel, forced childbirth, danger to the pregnant woman’s life and discrimination on the grounds of sex and financial status.
This case is the first direct challenge to Irish abortion law by a group of women. While the European Court of Human Rights does not have the authority to revise Irish law, it can find Ireland to be in violation of the human rights convention. If this were to happen, Ireland would be urged to comply with its obligations under the convention.
The Irish Times recently reported on the Government’s position:
In papers filed with the court and seen by The Irish Times , the Government has indicated it will launch a robust defence of the State’s restrictions on abortion.
It also insists the European Convention on Human Rights does not confer even a limited right to abortion and it would be “inconceivable” that member states would have agreed to this in drafting the convention. The main plank of its defence is that domestic legal remedies have not been exhausted by the women.
However, the Times reports that A, B and C will argue that the lack of any effective remedy at home means they have satisfied the domestic legal remedies requirement. The ‘case would have been costly, futile and could have forced them to relinquish their anonymity.’ The failure to exhaust domestic remedies was the hurdle at which 2005′s D v. Ireland (the case of a woman who sought an abortion in England when her foetus was diagnosed with Edward’s Syndrome) fell. Since D, the Court – not known for its eagerness to tackle the abortion issue – has held in Tysiac v. Poland that the Polish government had failed to fulfill its positive obligation, under Article 8ECHR to ensure Ms. Tysiac’s right to respect for her private life. Ms Tysiac’s doctors had refused to grant her an abortion, and the state, by failing to establish an effective procedure through which she could have appealed that refusal, had failed in its duty under Article 8.
One of the most interesting aspects of the A, B and C case, in my view, is its transnational dimension. The American women’s organisation Legal Momentum is providing legal counsel to the women. On the government side, a number of non-Irish groups describing themselves as ‘dedicated to the sanctity of human life’ have also become involved in the litigation. You can find the ‘Joint Written Observations of Third Party Interverners’ – essentially a defence of Ireland’s existing abortion law – filed in November 2008 here. The interveners include the European Centre for Law and Justice on behalf of former MEP Kathy Sinnott, the Alliance Defense Fund on behalf of the Family Research Council, United States and the Society for the Protection of Unborn Children, London.