Ireland’s violation of International Abortion rights: A perpetual Déjà vu.

We are pleased to welcome this guest post from Aisling McMahon and Brid Ni Ghrainne.

Abortion is only permitted in Ireland when the life of the mother is in danger, making the Irish abortion framework one of the most restrictive in the world. This week, the Committee Against Torture questioned Ireland about its lack of progress in reforming Irish abortion law[1] and stated that it must explain its human rights obligations to the Irish public before any referendum on abortion.[2] This comes as little surprise as the Irish framework has previously been criticised extensively by four other international human rights committees.[3] The Human Rights Committee has twice found – in Mellet v Ireland[4] and Whelan v Ireland[5] – that Ireland violated Art 7 (right against torture, inhumane or degrading treatment), Art 17 (right to privacy) and Art 26 (right to non-discrimination) of the International Covenant on Civil and Political Rights (ICCPR) for not providing access to abortions to women whose pregnancies suffered fatal foetal abnormalities. The Committee on the Elimination of Discrimination against Women, the Committee on Economic, Social and Cultural Rights, and the Committee on the Rights of the Child have also urged Ireland to change its restrictive abortion framework.

However, no changes have yet occurred. Instead, in response to the decision in Mellet v Ireland the then-Taoiseach Enda Kenny dismissed the Human Rights Committees’ views as not being ‘binding’ and ‘not like the European court’.[6] This exemplifies the confusion that exists regarding Ireland’s international law obligations relating to access to abortion. In response to these recent developments, this post considers: (1) why Ireland should adhere to the views of the respective Committees, and (2) how Ireland can bring its laws into conformity with international law.

Ireland should adhere to the views of the Committees.

The views of the Committees should not be ignored for a variety of reasons. First, although the respective Committees cannot issue binding judgments, they are made up of a group of experts in human rights law and are mandated to provide authoritative interpretations of the respective treaties. Under the international law rule of pacta sunt servanda,[7] Ireland must comply with treaties that it is a party to in good faith.

Second, Article 27 of the Vienna Convention on the Law of Treaties provides that: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”.[8] This position was reiterated by the Human Rights Committee in the decisions of Mellet and Whelan, and it promptly dismissed the constitutional protection of the life of the unborn as justifying Ireland’s treatment of the respective women.[9]

Third, a state’s international reputation is undermined by non-compliance with international treaties. For example, a State Party’s failure to implement the Human Rights Committee’s views: “becomes a matter of public record through the publication of the Committee’s decisions inter alia in its annual reports to the General Assembly of the United Nations.”[10] Relatedly, ignoring the views of such Committees, could lead to subsequent complaints being brought and subsequent violations being found, which increases reputational damage to the State.

Ireland’s International Law Obligations

The various Committees have called on Ireland to ensure access to abortion in three specific circumstances: (i) in cases of fatal foetal abnormality,[11] (ii) where pregnancy is the result of rape or incest[12], and (iii) where the woman’s health or life is in danger.[13] In respect of the latter circumstance, Ireland’s present laws do not provide for a right to an abortion where the health as opposed to the life of the mother is at risk and this has been raised as a concern. It should be noted that in highlighting these categories, we are not arguing that these are the only circumstances where abortion should be provided, rather we are arguing that these are the minimum circumstances which have been specified by the relevant Committees where a right to an abortion arises under international law. States have discretion to provide abortion in broader circumstances, and many states already do.

Various committees have also recommended that abortion be decriminalised in all circumstances in Ireland.[14] Finally, the Committees have requested Ireland to clarify the information which can be provided in Ireland on abortion services abroad. Individuals seeking terminations abroad are often faced with a dearth of information on such services as health professionals cannot ‘advocate or promote’ terminations under the Regulation of Information (Services outside the State for Termination of Pregnancies) Act 1995.

Until Ireland brings its laws in line with its international obligations it will continue to receive criticism from the international community. It is crucial that the Irish public are made aware of these international law obligations so that they can exercise their right to vote in an informed manner when a referendum on abortion finally occurs.

[1] See Irish Family Planning Association, ‘United Nations Torture Committee poses tough questions on Ireland’s abortion laws’ (Press Release, 27th July, 2017) https://www.ifpa.ie/UNCAT-2017-2

[2] See, Ellen Coyne, ‘UN challenges Ireland on human rights before abortion vote’ (28th July, 2017) The Times (Irish Edition) p. 1.

[3] This includes, the Human Rights Committee (HRC), the Committee on the Elimination of Discrimination against Women (CEDAW), the Committee on the Rights of the Child (CRC), and the Committee on Economic, Social and Cultural Rights (CESCR).

[4] ICCPR Human Rights Committee, Amanda Mellet v Ireland, 9 June 2016, UN Doc CCPR/C/116/D/2324/2013.

[5] ICCPR Human Rights Committee, Siobhán Whelan v Ireland, 12 June 2017, UN Doc CCPR/C/119/D/2425/2014.

[6] Pat Leahy, ‘UN abortion ruling is “not binding”, Enda Kenny says,’ (15 June 2016) Irish Times available at http://www.irishtimes.com/news/politics/un-abortion-ruling-is-not-binding-enda-kenny-says-1.2684762

[7] Article 26, 1969 Vienna Convention on the Law of Treaties.

[8] See discussion in Síobhán Mullally, ‘Mellet v Ireland: Legal Status of the UN Human Rights Committee’s ‘Views’ CCJHR Blog (16th June, 2016) available at http://blogs.ucc.ie/wordpress/ccjhr/2016/06/16/mellet-v-ireland-legal-status-un-human-rights-committees-views-2/

[9] See General Comment No 33, The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights CCPR/C/GC/33.

[10] Para 17, General Comment 33.

[11] This includes: Human Rights Committee views in Mellet v Ireland, Whelan v Ireland. See also, Human Rights Committee, Concluding observations on the fourth periodic report of Ireland CCPR/C/IRL/CO/4 (19th August, 2014) para 9; Committee on the Elimination of Discrimination against Women, Concluding observations on the combined sixth and seventh periodic reports of Ireland CEDAW/C/IRL/CO/6-7 (9th March, 2017) para 43 which recommended that terminations be legalised in cases of severe as opposed to fatal impairment of the foetus;

[12] This includes, the Committee on the Elimination of Discrimination against Women, Concluding observations on the combined sixth and seventh periodic reports of Ireland CEDAW/C/IRL/CO/6-7 (9th March, 2017) para 43. Human Rights Committee, Concluding observations on the fourth periodic report of Ireland CCPR/C/IRL/CO/4 (19th August, 2014) para 9. See also, the Committee on the Elimination of Discrimination against Women, Concluding Observations on the 7th and 8th periodic reports of Peru CEDAW/C/PER/CO/7-8, 24 July 2014.

[13] This includes concerns raised by the Human Rights Committee, Concluding observations on the fourth periodic report of Ireland CCPR/C/IRL/CO/4 (19th August, 2014); Committee on Economic, Social and Cultural Rights, Concluding observations on the third periodic report of Ireland (2015) E/C.12/IRL/CO/3.

[14] This includes: Committee on the Rights of the Child, Concluding observations on the combined third

and fourth periodic reports of Ireland CRC/C/IRL/CO/3-4; Committee on the Elimination of Discrimination against Women, Concluding observations on the combined sixth and seventh periodic reports of Ireland CEDAW/C/IRL/CO/6-7 (9th March, 2017) para 43. The Committee on Economic, Social and Cultural Rights, Concluding observations on the third periodic report of Ireland (2015) E/C.12/IRL/CO/3 and the Human Rights Committee, Concluding observations on the fourth periodic report of Ireland CCPR/C/IRL/CO/4 (19th August, 2014) which expressed concern over the criminalisation of abortion.

Ireland’s violation of International Abortion rights: A perpetual Déjà vu.

The Citizens Assembly Proposals: A Draft Bill

Lawyers for Choice has produced a draft bill that gives effect to the Citizens’ Assembly’s recommendations for abortion law reform. The purpose of the Bill is to codify the Assembly’s proposals, and to show how simply and easily that can be done. The provisions reflect the choices of the Assembly members’ and not those of Lawyers for Choice.

Regrettably, the Assembly’s deliberations on legislation were confined to grounds for accessing abortion only. Experience worldwide shows that, even where grounds are well-drafted, abortion can be difficult to access. The Oireachtas must pay attention to barriers to access such as obstructions outside of clinics, the circulation of misleading information on abortion, underfunding of services, and conscientious objection. Any final legislation must make provision for these matters.

In addition, we regret that the Assembly was unable to consider the decriminalisation of abortion, which is clearly required by international human rights law. Continue reading “The Citizens Assembly Proposals: A Draft Bill”

The Citizens Assembly Proposals: A Draft Bill

Barriers to first trimester abortion care.

We are pleased to welcome this guest post from Dr. Deirdre Duffy from the Liverpool-Ireland Abortion Corridor Project.

As the Citizens’ Assembly turn to the ‘when’ of abortion access, many are highlighting that allowing first trimester abortion in specific cases is highly problematic. The question of access and first trimester care is complex so it is worth summarising the key problems with first trimester focused access.

Barriers to access

A central problem in the timely administration and delivery of high quality care is the existence of ‘barriers to access’. These barriers can be structural, organisational, social, or personal and are usually a combination of a number of factors which prevent those who need care from getting it. By ‘getting’ here it is vital to recognise that patients are not passive – care is a dynamic process of requesting/approaching and being given care.

Importantly for Ireland, barriers to access are not just imposed from above but are embedded in cultures of care. So removing a barrier is more complex than simply funding an abortion clinic (for example) or making abortion legal as while the clinic may exist it may not have trained staff or have staff willing to perform abortions.  

Access and abortion care

In addition to questions about availability of trained professionals, financing of facilities, and proximity, abortion care has to factor in further barriers relating to abortion stigma and attitudes to abortion and women seeking abortion. As a result of abortion stigma, women may not approach care facilities for fear of repercussions. This barrier can be compounded by underlying norms and social factors both within and beyond caring institutions. If, say, a religious organisation which opposes abortion in all circumstances is placed in control of a hospital, a significant barrier to abortion care will inevitably result.

Abortion care access also needs to recognise the ‘timings’ of care-seeking and care-giving. Women may not know they are pregnant until well into the first trimester. Furthermore, health problems (foetal and maternal) become more apparent as pregnancy progresses. Acute care needs may only be detected in the second trimester or later and even then access may be limited by a lack of geographically proximate facilities.

What does this mean for a first trimester focused law?

The key problem with a first trimester law in Ireland is that barriers to first trimester abortion care are not impacted by liberalisation of abortion under 12 weeks gestation. Doran and Nancarrow’s systematic review (http://jfprhc.bmj.com/content/41/3/170.short; paywall) on barriers and facilitators for abortion care in countries where abortion is legal and the Guttmacher Institute’s regular reviews of barriers to care in the United States highlight core barriers which may not be impacted by this sort of change. These are divided into patient and provider perspectives in the table below.

Women’s perspectives Provider perspectives
Lack of proximate services Moral opposition
Lack of appointments/waiting lists Lack of training
Negative attitudes of staff Too few physicians
Associated costs of abortion Staff harassment
Insufficient hospital resources

Synthesis of barriers to first trimester abortion care – from Doran and Nancarrow (2015)

What would this mean in practice?

If a first trimester liberalisation is instituted then the front-line of sexual and reproductive and maternity care in Ireland will need to be closely explored. As research I have already been involved in highlighted (see here: https://mcrmetropolis.uk/blog/what-happens-when-women-have-to-travel-abortion-care-and-lessons-from-ireland/) communication between services in Ireland is not consistent. There are also significant issues relating to the cultures in hospitals – particularly if the Sisters of Charity are to be given ownership of the National Maternity Hospital, the key destination for acute maternal and foetal medicine – which will not be addressed by a legislative change.  

 

Barriers to first trimester abortion care.

Why would any country put abortion in the Constitution?

by Mairead Enright. (@maireadenright)

In Ireland, the abortion debate is often conducted by reference to Britain. Conservatives associate the Abortion Act 1967 with the bogeyman of  ‘abortion on demand’. In the struggle to ‘be different from Britain’, we perhaps miss some of our commonalities with other countries which have taken a similar route to regulating abortion. Ireland is unusual in ‘writing abortion into the Constitution’, but it is not alone. It is very difficult to generalise across jurisdictions, especially because Constitutions perform different functions in different jurisdictions, and are subject to different procedures for amendment. However, a quick survey suggests that Ireland has only about 20 fellow travellers; a few in Europe (such as Hungary and the Czech Republic), more in South America, where the trend began (Chile, Honduras, Ecuador, El Salvador) and the rest in Africa (Swaziland, Somalia, Uganda, Kenya, Zambia, Zimbabwe etc). I am not sure if this is an exhaustive list, and would be grateful for corrections and references. Constitutional abortion provisions take a variety of different forms. Some date to the 1980’s while others are very new.

  • The most common is a broad assertion that the right to life begins at conception or before birth: Czech Republic, Slovak Republic, Hungary, Dominican Republic, Ecuador, El Salvador, Guatemala, and Paraguay. Madagascar has a similar ‘right to health’ provision.
  • Statements of the unborn’s right to life: Chile and statements of the unborn’s right to be treated legally as a born person: Honduras, Peru. Interestingly, like the 8th Amendment, these also date from the late 1970’s/early 1980’s.
  • Provisions which equate the right to life of the unborn with that of the mother: Only Ireland and the Philippines have done this.
  • Provisions which set out the grounds for access to abortion: Somalia, Swaziland and Kenya.
  • Provisions deferring to the legislature, stating that abortion is illegal except as provided by legislation: Uganda, Zambia and Zimbabwe. Kenya and Swaziland have a similar provision, in addition to stating current specific grounds.

What have the results been?

A constitutional abortion provision is generally a mark of restrictive abortion laws. As shorthand, if you use the Center for Reproductive Rights well-known map of abortion laws, you will find most of these countries in the ‘red’ zone with Ireland; officially prohibiting abortion or allowing only life-saving abortions. These regimes are incompatible with women’s human rights to freedom from inhuman and degrading treatment, health, autonomy and so on. A few of our fellow-travellers are in the ‘yellow zone’, permitting access on grounds of physical and sometimes mental health and foetal impairment. Whatever the law says on paper, practical access to abortion is often poor, even for those women entitled to it in principle.

However, not all of these countries have such restrictive abortion laws. Hungary and the Slovak and Czech Republics have more liberal abortion laws than Ireland, at least on paper. A general statement of the obligation to protect unborn life does not in itself translate into either criminalisation, or restrictive grounds for abortion. The Constitutional Court of the Slovak Republic held in 2007 that a 12 week period of abortion on request was compatible with the constitutional provision on unborn life. Despite the Constitution’s foetal life provision, it was possible for the Slovak court to come to a similar position to that taken by constitutional courts elsewhere in Europe. Ireland’s Supreme Court has not be able to draw similar conclusions because the Supreme Court in X  held that the mother’s right to survival and the foetus’ right to be born are equal.

That said,  foetal life provisions are malleable, as are all constitutional rights. They operate in their particular context. Similar constitutional provisions are invoked to support regressive abortion policy in Hungary,and criminalisation of women in Ecuador. They can also ground extremely restrictive judgments by superior courts, as happened, for example, when an attempt to decriminalise abortion in the Dominican Republic was struck down, and when the Chilean constitutional tribunal blocked government efforts to distribute the morning after pill. Famously in El Salvador in 2013, the Supreme Court denied a seriously ill woman a termination even though her foetus could not survive birth.

The African provisions might catch the eye of those lobbying for ‘replacement’ rather than repeal. Some of these are indeed liberalising amendments by comparison with what preceded them. However, they are vulnerable to political intransigence. In Kenya, for example, lack of guidelines interpreting the constitutional provision has left doctors unwilling to provide legal abortion services. A case is forthcoming in the High Court. In Swaziland, although women’s groups welcomed the constitutional reform, no steps have been taken to legislate for abortion. Inconsistent interpretation of the abortion law has also been a problem in Uganda. As we know in Ireland, while abortion is in the constitution, legislators can (perhaps paradoxically) shirk their responsibility to legislate for it.

How does abortion end up in the Constitution?

It is impossible to answer that fascinating question fully for all of these very different countries, in all their complexity, in a single blog post.  In Ireland, constitutional abortion law has been a place to work through and make statements about national identity; abortion is the place where religious, post-conflict and post-colonial tensions meet. In 1983, PLAC capitalised on a period of political instability to place a near-permanent block in the way of women’s reproductive rights. It is an old adage that these tensions are worked out over women’s bodies, often with the assistance of powerful foreign lobbies.

Sometimes the identitarian nature of other countries’ law seems to appear on on the face of it. Somalia’s abortion provision, for example, explicitly references the shari’a. In other cases, we have to look to the context in which the provision was inserted into the Constitution.

Older constitutional abortion laws are associated with regimes which place a premium on national identity, whether as part of a process of self-definition after a prolonged period of violence, or as part of an ideology of ‘national security’ associated with military authoritarianism. Honduras’ provision is in a constitution passed in a period of instability after 10 years of military rule. One of the oldest constitutional abortion laws is Chile’s; passed by referendum in 1980 under Pinochet’s dictatorship. It is also interesting to note that many of the African countries mentioned, like Ireland, inherited their abortion law from the British in 1861. Abortion is tied up in postcolonialism, for them as for us.

Often the presence of an abortion provision reflects a religious backlash against what is perceived as unduly permissive abortion law. Zambia’s Constitution, for example, permits the government to legislate for abortion, and abortion is legal on narrow grounds. A new Zambian Constitution passed last year but a proposed constitutional provision – inserting a foetal right to life – has been deferred, pending the achievement of consensus. The new foetal life provision was intended to reflect the ‘Christian values’ underpinning the new Constitution. In Kenya, church leaders demanded a ‘no vote’ to the 2010 Constitution on the basis of its abortion provisions, even though they did not change the content of the pre-existing abortion law at all. Similar pressures succeeded in El Salvador, where in 1999 the Catholic church was a significant force in securing a foetal life amendment to the Constitution against feminist opposition. The involvement of the institutional Catholic church in repressing abortion reform is a theme across Latin America, where hostility to abortion has proved compatible with Leftist as well as with conservative government.

Conclusion

There is surprisingly little comparative work on constitutional abortion provisions. Ireland, however, would do well to pay attention to constitutional abortion provisions as a legal strategy; to ask what they have been used to do elsewhere; and to pass future laws which express, not a faith in Irish exceptionalism, but an awareness of the 8th Amendment’s global resonances. We tend to associate constitutional law with certainty and technicality, but a quick review of the history of constitutional abortion provisions suggests different associations; with stalled law-making, human rights abuse, and sacrifice of women’s interests in the pursuit of shared values.

Why would any country put abortion in the Constitution?

Reflections on the Citizen’s Assembly (3): The Presentation of Dr. Joan McCarthy

We are pleased to welcome this guest post from Donnchadh O’Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the third of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly; the first can be found here, and the second here

While debates over the status of the foetus are central to ethical and philosophical discussions of abortion, the freedom of women to choose to have abortions is crucial to political debates on this subject. Dr. Joan McCarthy presented a defence of this freedom, taking as her starting point “the body and the life of the woman or girl who is pregnant”, considered as a moral agent, i.e., as making ethical choices in concrete situations.[1] In assessing the choices such women face, McCarthy draws on two principles: autonomy and justice. Continue reading “Reflections on the Citizen’s Assembly (3): The Presentation of Dr. Joan McCarthy”

Reflections on the Citizen’s Assembly (3): The Presentation of Dr. Joan McCarthy

Reflections on the Citizens Assembly (2): The Presentation of Bobbie Farsides

We are pleased to welcome this guest post from Donnchadh O’Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the second of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly; the first can be found here.

Debates about abortion can often be traced back to disagreements about the status of the foetus, e.g., whether it is a being with any independent moral significance. All parties to this disagreement share two assumptions: that ethical debates over abortion are primarily a matter of the moral importance of the foetus, and that the nature of the foetus is what determines its moral status. Hence many opponents of abortion will appeal to the fact that the foetus is a human being, e.g. it has a soul or has the potential to become a rational being; many proponents of liberal abortion laws will counter that the foetus, at least early in its development, lacks certain capacities which are crucial to having moral status.[1] The arguments here are often complex and involve subtle points of metaphysics which are not easy to resolve. More generally, regardless of what one thinks about these issues, it might seem that such esoteric matters are not appropriate as a basis for legislation.

In her submission to the Citizen’s Assembly, Prof. Bobbie Farsides outlines an alternative approach: a way of justifying a pro-choice regime which seeks to avoid disputes about the nature or moral status of the foetus.[2] Continue reading “Reflections on the Citizens Assembly (2): The Presentation of Bobbie Farsides”

Reflections on the Citizens Assembly (2): The Presentation of Bobbie Farsides

Reflections on the Citizens Assembly (1): The presentation of Dr Helen Watt

We are pleased to welcome this guest post from Donnchadh O’Conaill, of the Department of Philosophy, History, Culture and Art Studies at the University of Helsinki. This is the first of a series of posts Donnchadh is writing on presentations of ethicists to the Citizens Assembly.

Regardless of what one thinks about the need for a Citizen’s Assembly, its deliberations have already thrown up a number of interesting approaches to thinking about ethical issues, particularly concerning abortion. What follows is a series of articles on the presentations by ethicists to the assembly, examining the arguments that they offer and their potential implications for a possible referendum to repeal the 8th Amendment.

Dr. Helen Watt presented an argument against abortion which was of interest, particularly in the context of Irish debates about abortion, in not relying (at least not explicitly) on religious doctrine. Indeed, Watt’s arguments rest on certain assumptions which are difficult or impossible to reconcile with the beliefs of many religions, for instance the belief in an immortal soul. But as with more familiar religiously-motivated discussions, Watt’s argument appeals to the nature of the foetus to justify its having a certain moral status. By the ‘nature’ of the foetus I mean not just its physical or biological features but those features which might be thought to give it moral significance in and of itself, regardless of what anyone thinks about it. This kind of moral significance is what is usually meant when ethicists speak of the ‘moral status’ of the foetus. Continue reading “Reflections on the Citizens Assembly (1): The presentation of Dr Helen Watt”

Reflections on the Citizens Assembly (1): The presentation of Dr Helen Watt

Benefit Sanctions and Coercion Within the Irish Welfare System

We are pleased to welcome this guest post from Charles O’Sullivan, doctoral candidate at Maynooth University.

In recent days, the Department of Social Protection (DSP) has announced that since January 1st of this year, 4,242 jobseekers have been subjected to penalties for refusal to engage with services, refusal to take up an offer of training or education, or failure to attend meetings. These benefit sanctions can involve a recipient receiving €44 less per week, and where the failure persists after the sanction has been imposed for 21 days, social welfare payments may be withdrawn in full for a period of 9 weeks. In some instances, a complete ejection from the welfare system is possible.

This figure represents a low in comparison to the roughly 6,500 sanctions applied throughout 2014, but far in excess of the 359 issued in 2011. It must also be born in mind that sanctions can now be applied for far lower infractions, such as failure to upload a CV to a government website, demonstrating the degree of coercion now in force.

This increased emphasis on sanctions overlaps with several years of prolonged austerity within Irish society, and what is now a government focused on the continued retrenchment of public services for ideological reasons. Consequently, welfare recipients are required to overcome ever more burdensome procedural hurdles in order to access increasingly limited funds. Callan et al have previously highlighted that those under 25 years of age, single parents, and low-income families with multiple children have suffered the most with each new series of welfare reforms, and have seen their entitlements cut far more than others. The gendered dimension of these cuts must also not be overlooked, as single parents, most of whom are women, are 35% more likely to fall into poverty than other groups. From the perspective of applying sanctions, Adler notes that in the UK groups such as these, as well as the disabled, and immigrants with low levels of English comprehension will be more likely to receive them. This means that the already vulnerable are not only targeted in relation to cuts in welfare rates but also in how much they are policed. Inevitably this will lead to higher levels of deprivation among these groups.

Secondly, the DSP emphasises that any sanctions imposed are proportionate. The result is that the highest penalty of €44 will only be applied to jobseekers in receipt of the top rate of €188 per week, while those receiving, for example, a lower rate of €84.50 would see their benefit temporarily reduced to €64 per week for the prescribed period of time. However, even if one ignores that these are more likely to be imposed on the already vulnerable, that sanctions can be applied to the lowest rates of payment is particularly troublesome.

A further potential consequence is that in forcing jobseekers to stretch their resources even further while sanctioned, they may be less able to comply with the necessary conditions and that this will result in additional sanctions. Research interviews conducted in Scotland show evidence of this, as well as the potentially significant amount of time spent by welfare recipients in order to avoid sanctions which could be spent on something more productive (such as searching for employment).

Finally, the idea that these sanctions are likely to encourage higher rates of compliance and employment is highly problematic. Sanctions essentially act as a means of ejecting, either partially or wholly, the recipient from the welfare system, and make it more difficult for them to engage with the labour market. Research from the United Kingdom found that those who left the welfare system following the imposition of sanctions often do so without having obtained employment, meaning that many are simply left without state income supports. Other research has found that those who do find employment are more likely to take up low-skilled labour, attracting far lower rates of remuneration, and with less certainty as to tenure and working conditions. This also presupposes that there is a high demand for such labour, and where the supply of jobseekers exceeds the demand for them in the labour market, it emphasises that in spite of clear structural deficits it is somehow the jobseeker who is responsible for their continued unemployment. Where higher levels of support are given, even if it means a person being unemployed for longer periods, this can lead to better outcomes in terms of transitioning into employment and the kind of employment they will find.

The legal basis upon which these sanctions can be challenged is somewhat limited for individuals on whom they are imposed. The Constitution itself does not specifically provide for a right to social welfare. Article 45 does allude to the directive principle of supplying income supports and protecting the vulnerable but is not justiciable as a cause of action, and is simply a guiding principle for social policy. Minister for Social, Community and Family Affairs v Scanlon [2001] IESC 1, saw the Supreme Court find that existing rights such as the right to property in Article 43.1 may also not be invoked, as any entitlement to social welfare benefits is created through ordinary legislation alone. Nor do legal principles such as estoppel or ‘reasonable expectation’ create a presumption of entitlement as established in Galvin v Minister for Social Welfare [1997] 3 IR 240, and Wiley v Revenue Commissioner [1993] ILRM 482 respectively. Such a challenge would also be impractical for an individual of limited means regardless of how likely or unlikely it is to succeed.

The case of Hurley & Ors v Secretary of State for Work and Pensions saw the English High Court find that a limit being placed on the amount of welfare benefits an individual can receive is indirectly discriminatory where they act as the carer for a person with a disability, based on Articles 8 and 14 of the ECHR. In theory a similar challenge could be brought here, but may still face a judiciary that is deferential to the way in which the State allocates funds and which views welfare payments as a solely statutory right.

Any appeal of sanctions triggered at a national level is as such limited to the appeals mechanism set out in the Social Welfare (Consolidation) Act, 2005 and its supporting instruments, with appeals being lodged through the the Social Welfare Appeals Office, based on the procedure established in Section 318 of the 2005 Act.

It is possible that the systemic issues with sanctions could be raised under the Covenant on Economic, Social and Cultural Rights. As McLachlan recently highlighted, the results of the United Kingdom’s periodic review from the Committee on ESCR were quite unfavourable with regard to benefit sanctions and their detrimental effect on the lives of welfare recipients. During Ireland’s own review last year, this issue was not raised, but it would be possible for civil society and other social actors to raise this issue in future in the hopes of a similar outcome. This would require that the circumstances in Ireland are of a comparative standard and are clearly demonstrable. However even this would require that the State is amenable to altering the current system, as a being found to have violated rights within the Covenant would not immediately trigger the need for changes by itself. Consequently, any substantive, systematic changes require a political will that seems to be absent at present.

Benefit Sanctions and Coercion Within the Irish Welfare System

The rights of the unborn: a troubling decision from the High Court?

Mairead Enright (@maireadenright)

Does the unborn have rights other than the right to life enshrined in the 8th Amendment?

It is clear that, under Irish law, foetuses cannot have any greater rights than children already born.[1] However, recent cases have raised the prospect that they have some of the same rights and interests as born children. In PP v. HSE,[2] for instance, the High Court referred to the ‘best interests’ of the foetus who has no prospect of survival outside the womb, analogising its position to that of a child on life support. It is not clear that the ‘unborn’ (the entity recognised or created by the 8th Amendment) is, for constitutional purposes, a child like any other. Recently, the courts have been asked to consider whether foetuses carried by Irish citizens have particular rights other than the right to life, which the state should take into account in assessing whether to deport their non-citizen fathers. Another, broader, way of putting this question is to ask whether the unborn’s rights derive exclusively from the 8th Amendment, or whether it may also enjoy rights grounded in other parts of the Constitution.

The position: foetuses may be treated as having constitutional rights other than the right to life.

In E[3] (the case of Kunle Eluhanla) Irvine J. applied an old common law maxim that the unborn should be treated as born in law where its interests require it. This meant that the Minister for Justice, in deciding whether to deport E’s father should have treated the then unborn  E as if he was born. In practice this meant that Michael McDowell as Minister for Justice should have taken into account E’s rights to the society and support of his parents, amongst many others. In taking this step Irvine J. paid particular attention to the fact that the Minister had been notified of E’s impending birth at the time he made his decision, but ultimately decided to make his order just 9 days before E was born. Irvine J. was struck by the injustice of allowing the Minister to take capricious advantage of the circumstances of pregnancy and childbirth, noting that if E had been born prematurely, the Minister would have had to take his existence and needs into account in making the decision.

She held that the unborn,in cases of this kind, can be treated as having all of the personal rights of the citizen under Article 40.3 of the Constitution.These rights were enumerated in G v. An Bord Uchtala[4] (a case about ‘illegitimate children’) and include the ‘right to bodily integrity, the right to be reared with due regard to religious, moral, intellectual, physical and social welfare, to be fed, to be educated, to work and to enjoy personal dignity… ’. As Irvine J. noted, these are the “natural and imprescriptible rights of all children”, now recognised in Article 42A of the Constitution.

The Ugbelese position: the rights of the foetus are confined to those conferred by the 8th Amendment.

In the later case of Ugbelese,[5] by contrast, Cooke J. took the position that the unborn does not have any rights other than the right to life.[6] Cooke J. argued that Irvine J. over-extended the common law maxim mentioned above, which he argued had previously only been used in a backward-looking way, to allow financial recovery for injuries suffered in the womb, and not to allow assertion of future rights before birth.

In any event, he argued that her decision was inconsistent with the Constitution. For Cooke J. the purpose and effect of the 8th Amendment is to definitively set out all of the rights of the unborn .Indeed, whereas Irvine J. derives the unborn’s rights to family life from Article 40.3, Cooke J. notes that the 8th Amendment is a specific amendment to that Article, indicating that the unborn is not intended to enjoy those personal rights as born citizens do. Before 1983, he argued, there had been some limited judicial discussion of the rights of the unborn (McGeeFinn v. AG and G v. An Bord Uchtala), but these were not definitive: the Amendment was intended to clear up this uncertainty. The Amendment does not give any rights to the unborn other the right to life (which for Cooke J. also  implies the right to bodily integrity; the right to protection from any wilful interference with the natural course of gestation.)   Any additional rights of the child are prospective and inchoate until birth, when they can be exercised in society and community as an independent person.

So, after Ugbelese, the High Court had taken two distinct stances on this question. Recently, Humphreys J. decided between them.

Humphreys J. chooses the position: the IRM case.

In IRM v. MJELR,[7] Humphreys J. was asked to determine whether the State in deciding whether to deport the father of unborn child of an Irish citizen is obliged to consider the unborn’s future rights to family life as well as its the right to life enjoyed under the 8th Amendment.

Humphreys J prefers the reasoning of Irvine J. in E, and holds that in deportation cases, the state must consider the family rights that the unborn will enjoy in the future. He rejects the Cooke argument in Ugbelese (above) that the 8th Amendment was intended to completely embody all of the unborn’s rights. His judgment criticises Cooke J. at length for his excessively ‘literal’ reading of the 8th Amendment,[8] which Humphreys J. contends is incompatible with the principle that the constitution is to be read as a whole.[9] In addition, whereas Cooke J. presents the 8th Amendment as resolving a problem of uncertainty about the status of the unborn in Irish law pre-1983, Humphreys J. argues that the obiter statements about foetal life in McGeeFinn v. AG and G v. An Bord Uchtala clearly indicate that the rights of the unborn pre-dated the Amendment, and were simply confirmed or supplemented by the Amendment.

Humphreys J. goes on to specify the following rights of the unborn:

  • Humphreys J. agrees with Irvine J. that the unborn may be treated as having a right to family life. Irvine J. derived this from the personal rights provisions of the Constitution in Article 40.3. Since her judgment was delivered, the people have added a new provision to the Constitution and Humphreys J. relies on it here. He holds that Article 42A (the Children’s Rights Amendment) by its specific reference to “all children” is intended to protect unborn as well as born children. To bolster this interpretation, he cites several examples of laws which use the phrase ‘unborn child’, and emphasises that ‘expectant parents’ recognise the unborn as a child.[11] He criticises the state’s arguments to the contrary for excessive literalism.[12] Humphreys J. recognises that the unborn will not enjoy all of the rights contemplated under Article 42A, insofar as it cannot effectively exercise them. But this in itself does not unseat the argument that the unborn is a child for constitutional purposes. In this respect, he analogises the unborn to the profoundly disabled born child.[13]  
  • He also argues (probably obiter) that the unborn has the right to health, and not merely the right to bodily integrity as a corollary of the right to life.[10] The difference between Cooke J. above and Humphreys J. here is a matter of degree, but Humphreys J. argues that the foetus has a right to be protected from injury to health as well as from the health/bodily integrity consequences of exposure to a risk to life. This principle, if extended to an appropriate case, could have an impact on women’s decision-making in pregnancy outside of the abortion context. See further here.
  • In support of his extension of the rights of the unborn beyond the right to life, he notes that the unborn is already recognised as having a number of statutory and common law rights additional to the right to life, including:
    • The right to litigate.
    • The right to succeed to property.
    • The right to sue in tort, once born, for injuries sustained in the womb.
    • The right to health and welfare, which implicitly grounds the Child and Family Agency’s practice in child protection cases where there are concerns around a pregnant woman’s capacity to care for her child once born.
    • The right of a stillborn child to recognition of his/her identity.
    • At an international level, Humphreys J. cites paragraph 9 of the UNCRC as establishing the unborn’s right to special protection and care before birth. Notably, he does not discuss the European Convention on Human Rights, which does not recognise rights of the unborn.

Humphreys J’s judgment reflects an obvious frustration with a state which wishes, in his view to have its cake and eat it – holding the unborn as sacrosanct but not affording it any rights which would inconvenience the state. However, in respect of family life, this is not a judgment about the constitutional rights which the foetus automatically enjoys in the womb. Humphreys J. did not have to resort to the legal fiction used in E because IRM was framed as a test case on the very question of the extent of the rights of the unborn in deportation cases. However, his judgment, like Irvine’s judgment in E is designed to compel the state to have regard to ‘the prospective situation which is likely to unfold, and particularly such rights arising from a child’s status as a citizen as are likely to exist, rather than the state of affairs as it exists as a snapshot on the date which the Minister’s decision is made in isolation from matters which are imminently prospective as a matter of likelihood’.[14] He argues that under the old decision in East Donegal Co-Operative v. AG the state is required to guard against prospective threats to constitutional rights.

What does this mean for campaigns for liberalisation of Irish abortion law?

Some of the language employed in Humphreys J’s judgment is worryingly reminiscent of pro-life literature. At various points he refers to the state as ‘sneering’ at the rights of the unborn; notes that all adults were ‘unborn’ once, and argues that the unborn must be a child in principle because happy expectant parents think of their pregnancies in this way.The troubling analogy drawn between foetuses and profoundly disabled born children noted above also calls to mind anti-abortion campaigners’ appropriation of disabled people’s experience. Ultimately, his failure to consider, even in passing, the wider repercussions for women of his approach to the unborn is cause for concern. However, even if his judgment is good law (and a Supreme Court which takes a more restrained approach to constitutional interpretation is unlikely to think so), it is of limited relevance to the campaign for repeal of the 8th Amendment.

  1. These cases are not decisions about foetuses. They are decisions about Irish citizen children who were already born when the judges heard their cases. The judgments consider deportation decisions made in respect of their fathers before their births.
  2. These cases are not about the rights which foetuses have before they are born. As discussed above, they are clearly cases about the state’s duty to consider their future post-birth rights when considering deportation of their fathers.
  3. These decisions are products of a laudable judicial effort to preserve limited space for parent-child relationships within an unjust immigration system which has for a long time demonised migrant family-making. They cannot sensibly be extended beyond that context.
  4. The constitutional problem at stake here is very different from that which arises when a woman needs an abortion. Humphreys J. and Irvine J. have attempted to acknowledge rights of the unborn which are, in the immigration context, entirely congruent with the rights of the prospective parents. (Similarly, the examples of additional common law or statutory rights of the unborn listed by Humphreys J. directly advance the interests of born persons connected to the unborn, and either do not conflict with the rights of the pregnant woman, or are carefully balanced against those rights.) In addition, the right recognised in these cases need only be ‘considered by the state’. The rights of the unborn cannot absolutely restrict the state’s entitlement to deport its parent: the burden on the state here is very light. By contrast, in constitutional terms, abortion involves a direct and serious conflict between the rights of the unborn and the rights of the pregnant woman. These cases do not tell us anything in principle about how such conflicts should be resolved.
  5. It is especially difficult to imagine how Article 42A might be applied to abortion after repeal of the 8th. Courts are generally careful to confine the application of constitutional provisions to the areas of social life which they were intended to regulate, particularly where morally controversial activities are concerned.[15] The campaign to add Article 42A to the Constitution focused on establishing children as rights-holders independent of their parents. It did not centre on abortion and so it is reasonably clear that the people in voting on Article 42A did not intend it to apply to this context.
  6. If the unborn enjoys additional personal rights, they are not absolute rights. Outside of the direct abortion context, the courts have repeatedly stated that in interpreting the unborn child’s rights (including in deciding how and when the unborn child’s right to life applies) the courts must bear the countervailing rights of the mother – particularly her rights to bodily integrity and privacy – in mind.[16]
  7. There is an argument that, even if the 8th Amendment were repealed, these additional rights of the unborn and the right to life of the unborn could nevertheless survive within the Constitution. For example, post-repeal, we might see the Supreme Court affirm the existence of those rights in an Article 26 reference or in a constitutional challenge to future abortion legislation. A similar argument has already been made in respect of judgments like McGeeFinn v. AG, Norris and G v. An Bord Uchtala (see the disagreement between Cooke J and Humphreys J. above). Even if this argument holds some weight (and the weight it holds would depend on the preferences and makeup of the Supreme Court at the time) it is unlikely that it would cause  future post-8th abortion legislation to be struck down as unconstitutional. The Constitution is a living document which is to be interpreted in light of prevailing ideas and concepts (McGee v. AG). Successful repeal of the 8th Amendment, particularly in the context of a campaign which has and will emphasise the rights and experience of women, would send a strong signal to the Supreme Court that the Constitution was longer to be interpreted as it is under the X case. A future Supreme Court, considering post-repeal abortion legislation, is likely to be concerned with a balancing of the rights of foetus and pregnant woman, rather than with the application of a near-absolute foetal right to life. Amendment or replacement of the 8th, to provide an explicit constitutional right to abortion could, of course, help to restrain the judiciary in this area.
  8. Any argument that these judgments are an uncomplicated victory for human rights depends on ignoring serious questions of race and gender inequality. For instance, it appears that the rights recognised in E and IRM only apply to the unborn children of Irish citizens – this is the legacy of the citizenship referendum. The Supreme Court had already established that the right to life of the unborn child of non-citizens cannot pose an obstacle to its mother’s deportation.[17] In addition IRM recognises the rights of the unborn while dismissing the argument advanced on behalf of the pregnant woman that her mental health might require her partner’s deportation to be stalled so that he could be present to support her at the birth of her child.[18] A woman will also need to prove something approaching risk to life, or inhuman and degrading treatment related to the deportation before her pregnancy can operate to stall her own deportation.[20]  

Footnotes:

[1] Baby O [2002] 2 IR 169

[2] [2014] IEHC 622. See further http://humanrights.ie/gender-sexuality-and-the-law/pp-v-hse-futility-dignity-and-the-best-interests-of-the-unborn-child/

[3] [2008] IEHC 68

[4] [1980] IR 32, 69

[5] Ugbelese [2009] IEHC 598. was preferred by Hogan J. in A v MJELR [2001] IEHC 397. E was cited approvingly by MacEochaidh J in FO v. Minister for Justice [2013] IEHC 236 and again in Dos Santos v. Minister for Justice [2013] IEHC 237, appearing to equate the rights of the unborn child in the context of deportation with the rights of children generally.

[6] Cooke J. also argues that he is not bound by the judgment in E because Irvine J. did not intend her judgment to be determinative of the constitutional issue of the rights of the unborn.

[7] 29 July 2016

[8] p.31

[9] p. 21

[10] p. 22

[11] p.29

[12] p.30

[13] p.30

[14] p.33

[15] See e.g. Baby O [2002] 2 IR 169 and Roche v. Roche [2009] IESC 82

[16] Baby O [2002] 2 IR 169 (right to bodily integrity); Ugbelese [2009] IEHC 598 (right to travel and privacy); PP v HSE [2014] IEHC 622 (right to dignity in death)

[17] Baby O [2002] 2 IR 169. See further Ruth Fletcher here.

[18] p. 19.

[19] p. 38

[20] Aslam v. MJELR [2011] IEHC 12

The rights of the unborn: a troubling decision from the High Court?

Amanda Jane Mellet v. Ireland – The Key Points

As readers will know by now, the UN Human Rights Committee today held that Ireland’s abortion law violated Amanda Mellet’s human rights under the ICCPR. The foetus she was carrying was diagnosed with a fatal foetal abnormality. Irish law criminalises abortion except as a last resort to save the pregnant woman’s life, and  thus compelled her to travel to Liverpool for an abortion. This is the first time that any international court or human rights body has found that the criminalisation of abortion is in itself a violation of women’s human rights. The Committee held that the Irish law:

  • Violated her right to freedom from inhuman and degrading treatment because it exacerbated the anguish associated with a pregnancy affected by fatal foetal abnormality. By compelling her to travel, the law deprived her of material and emotional support and appropriate care during and after her abortion. Criminalisation, in particular, compounded the shame and stigma associated with abortion in Ireland. The chilling effects of the Abortion Information Act, which meant that she could not obtain adequate information about terminating the pregnancy abroad,  were a source of further distress during the decision-making process. The process of travel also disrupted her recovery and worsened the grieving process: the Committee focused on her experience of receiving the foetus’ remains by courier, after she had returned to Ireland. The Committee here is providing us with resources to upset that prevailing public discourse which suggests that a pregnancy affected by fatal foetal abnormality is a tragedy; a trial which good mothers must bear with serene nobility. Committee Member Sarah Cleveland described this as “a stereotypical idea that a pregnant woman should let nature run its course, regardless of the suffering involved for her.” The Committee says that, even though the state did not directly inflict harm on Amanda Mellet, its neglect and abandonment of women in this situation  – who are left “isolated and defenceless” – moves situations like hers out of the realm of guiltless tragedy, and into that of state responsibility.
  • Violated her rights to privacy and bodily integrity. The Committee held that the Irish abortion law amounted to an unjustifiable interference with Amanda Mellet’s decision-making around her pregnancy. The State had argued, following the Irish constitutional test, that the interference was proportionate to its aim of balancing the rights of the pregnant woman against those of the foetus. The legality of the interference under domestic law is not important in this context. In addition, the Committee notes that because the law violates the right to be free from inhuman and degrading treatment, the restrictions it places on the right to privacy and bodily integrity could not be considered compatible with international law. Irish law, in its zeal to protect the foetus, has gone too far. In particular, the Committee emphasises that the treatment of Amanda Mellet under law was especially unreasonable because her pregnancy was not viable. Sarah Cleveland wrote: “Requiring the author to carry a fatally impaired pregnancy to term only underscores the extent to which the State party has prioritized (whether intentionally or unintentionally) the reproductive role of women as mothers, and exposes its claimed justification in this context as a reductio ad absurdum.”
  • Violated her right to freedom from discrimination. Amanda Mellet pointed out that women who choose to continue their pregnancies after a diagnosis of fatal foetal abnormality, and deliver a stillborn baby in Ireland receive state-funded care, while those who choose to travel for termination must bear the expense of doing so by themselves. Similarly-situated women are treated differently, with real financial and medical consequences. The Committee accepted that this difference in treatment amounted to discrimination in two ways.
    • First, the law discriminates against women as women. The State had made the facile argument that gender discrimination is confined to circumstances where men and women are similarly situated but men are better treated: by definition, they maintained, it cannot occur in respect of pregnancy because only women can become pregnant. Sarah Cleveland emphasises that the criminalisation of abortion is gender discrimination, because it affects a health service that only women need, and places no equivalent burden on men. In addition, the Committee reminds the state that gender stereotyping of women is in itself a form of gender discrimination.  In this respect, an interesting point from a feminist perspective is the Committee’s observation that the difference in treatment between those women who carry to term, and those who terminate the pregnancy is rooted in stereotypes of women as ‘reproductive instruments’. This point has been canvassed in Irish feminist scholarship for decades. Yad Ben Achour elaborated: “The prohibition of abortion in Ireland, owing to its binding effect, which is indirectly punitive and stigmatizing, targets women because they are women and puts them in a specific situation of vulnerability, which is discriminatory in relation to men. Under this legislation, the author has in effect been the victim of the sexist stereotype, whereby women’s pregnancy must, except where the life of the mother is at risk, continue, irrespective of the circumstances, as they are limited exclusively to their reproductive role as mothers. Reducing the author to a reproductive instrument constitutes discrimination and infringes her rights both to self-determination and to gender equality.”
    • Second the law failed to take into account the socio-economic effects of this differential treatment; in particular the costs of travel and seeking treatment abroad. Several Committee members maintained that the discrimination was not only between women who carried their pregnancies to term and those who travelled, but between those who could more easily afford to travel abroad for abortions and those who like Amanda Mellet, struggled to pay for the travel and the procedure. Sarah Cleveland noted that Article 26 ICCPR “prohibits the unequal access to reproductive health care for low-income and vulnerable populations that results from Ireland’s legal restrictions on reproductive health services.”
  • Violated her right to seek and receive information. Three Committee members held that the Abortion Information Act encourages medical personnel to withhold clear and timely information that women like Amanda Mellet could use to make decisions about their pregnancy and health, and that this in itself is a violation of rights under the ICCPR.

The Committee’s emphasis  on the woman’s entitlement to expect a certain level of compassion, care and attention from the state is very welcome. Amanda Mellet, Termination for Medical Reasons Ireland, their legal advisors and the Center for Reproductive Rights must be commended for their work in bringing this case to the Committee.The government is required to respond to the Committee’s decision within 180 days, outlining the concrete steps which it will take to remedy the identified human rights abuses, and to prevent future similar harm to other women. The ruling will contribute significantly to the existing moral pressure on the government to hold a referendum on the Eighth Amendment (see further discussion by Fiona de Londras here). The Health Minister, Simon Harris, has indicated that he wants to see law reform in this area. However, the government of which he is a member has continued to drag its heels on the issue of abortion law reform.

This post is by Mairead Enright of Kent Law School – m.enright@kent.ac.uk

Amanda Jane Mellet v. Ireland – The Key Points