I have just finished reading A, B & C. There is a great deal more to be said about the judgment and we hope to run expert commentary on it in the coming days. For now, here are the basics.
What is the case about?
Three women challenged Ireland’s existing abortion law before the European Court of Human Rights. All three women became pregnant unintentionally and travelled to England for abortions. All experienced a financial burden in travelling. All experienced after-effects requiring treatment in Ireland. The court noted that all three felt a deep sense of moral stigma about their abortions; that they had done something in England which was a crime at home and which, on the Government’s reading, was contrary to the moral values of the great majority.
But the women were different in important ways. Only one (C) was eligible for an abortion under existing Irish law (contrary to press reports, Irish law does not protect the life of the foetus ‘unconditionally‘) because her pregnancy posed a real and substantial risk to her life. C discovered she was pregnant while undergoing treatment for cancer. She argued that Ireland’s constitution may allow for abortions in theory where there is a risk to the life of the mother, but that because no government has properly legislated for abortion, it is in practice inaccessible even to women who may come within the narrow constitutional provision. The is no regulatory regime in place which would allow the risk to the life of the mother to be assessed and her qualification for an abortion in Ireland established.
A & B, by contrast, did not come within the scope of Ireland’s existing abortion law. They argued that Irish law should permit abortion in a wider range of circumstances than it already does – that abortion should be permitted where the life of the mother is not at stake, but her health and well-being is. A, for instance, was living in poverty, struggling with alcoholism and had lost custody of her other children.
Why wasn’t this case heard in Ireland?
The European Court of Human Rights cannot deal with a matter unless all domestic remedies have been exhausted. The difference between C’s claim and that made by A&B is important here. C’s very complaint was that no suitable domestic remedy was available to her; she wanted a legal framework which would have enabled her claim to an abortion to be assessed. The court had to assess that complaint on its merits and decide whether she was entitled to a domestic remedy.
A&B, by contrast, accepted that abortions were not permitted, under the constitution, for women in their circumstances. The Government argued that they should have been required to bring a constitutional action in Ireland, in an attempt to expand the range of constitutionally permissible abortions. However, the Court, having reviewed Ireland’s long history of legal battles over abortion – its Supreme Court judgments and public reflection processes – accepted that such an action would have little prospect of success, and that A&B should not be required to attempt it before seeking judgment from Strasbourg.
What was the major issue?
The main article of the ECHR at issue was Article 8, which protects the right to private life. The women’s claims came within the scope of Article 8, because they encompass questions of personal autonomy, and of course pregnancy which is intimately connected to the private life of a woman. However, the state has a wide ‘margin of appreciation’; it may interfere with Article 8 to a degree which is necessary and proportionate in a democratic society. The margin afforded to the state will be wider where it interferes with Article 8 for profound moral reasons, and it will not be narrowed purely because the majority of other states parties to the Convention regulate abortion differently. The Court accordingly asked ‘whether the prohibition of abortion in Ireland for health and/or well-being reasons struck a fair balance between, on the one hand, the first and second applicants’ right to respect for their private lives under Article 8 and, on the other, profound moral values of the Irish people as to the nature of life and consequently as to the need to protect the life of the unborn.’
So should Ireland permit abortions where there is no risk to the life of the mother?
There is no requirement to do so under the ECHR. The Court held that Irish law, in prohibiting abortion in cases such as that of A and B struck an appropriate balance between women’s rights and the ‘profound moral values of the Irish people’ (the question of how deeply these values are held and shared was contested by counsel for A&B), especially given that the right to travel for abortion and the right to information were not restricted. The court accepted that A & B were severely burdened by the existing restrictions on the legal entitlement to abortion, but not so much as to outweigh the supposedly shared and profound Irish opposition to abortion for ‘social’ and ‘health’ reasons. As such, Ireland’s law on abortion remains basically unchanged, and the Court may be said to have taken a distinctly ‘hands off’ approach to Irish law. The judgment emphatically does not ‘condemn Ireland’s abortion ban’, as the headlines almost all say today. Neither does it condemn the state’s reliance on the availability of abortion in England as a violation of human rights. (Counsel for A&B had also argued that the shameful experience of travelling to England, the absence of proper medical treatment in Ireland etc. came within the scope of Article 3ECHR which protects against inhuman and degrading treatment. The Court rejected this argument).
What about the failure to legislate for constitutionally permitted abortions ?
The Court found that the state’s failure to legislate for constitutionally permitted abortions constituted a breach of C’s right to private and family life. Under Article 8, the state bears a positive obligation to provide effective and accessible means of protecting the right to respect for private life. The state, as set out above, enjoys a broad margin of appreciation as to whether to permit various categories of abortion, but having decided to permit abortion where there is a real and substantial threat to the life of the mother “the legal framework devised for this purpose should be “shaped in a coherent manner which allows the different legitimate interests involved to be taken into account adequately and in accordance with the obligations deriving from the Convention.” Ireland has failed to legislate on abortion and so no appropriate framework was available to C within which she could vindicate her right to private life. ‘The Court considers that the uncertainty generated by the lack of legislative implementation of Article 40.3.3, and more particularly by the lack of effective and accessible procedures to establish a right to an abortion under that provision, has resulted in a striking discordance between the theoretical right to a lawful abortion in Ireland on grounds of a relevant risk to a woman’s life and the reality of its practical implementation‘ The Court did not consider that the long-standing Irish tradition of forcing women through constitutional proceedings was an appropriate substitute. Ireland, the court said, ought to legislate for the implementation of its existing law.
What happens now?