We are pleased to welcome the latest post in our series of responses to the judgment of the European Court of Human Rights in A, B & C v. Ireland. This post is from Dr. Sandra McAvoy. An historian who focuses on issues around fertility control, she is co-ordinator of Women’s Studies at University College Cork and a member of Cork Women’s Right to Choose Group.
While the decision of the European Court of Human Rights in the case of Ms C is to be welcomed because it may compel an Irish government to lay out when a woman whose life is at risk may have an abortion in Ireland. It would be regrettable; however, if something on the lines of the 2002 referendum were reintroduced.
This involved an attempt to imbed a complex piece of anti-abortion legislation in our Constitution. It was designed not only to roll back the X case judgement, removing risk of suicide as a ground for permitting abortion, but also to fore-stall any future judgement that abortion was legal when a woman’s health was threatened.1 The people rejected that proposal. It is interesting that at the ECHR the state appeared to represent that defeat as evidence of an anti-abortion majority in the state, particularly when only some 42% of the population turned out to vote. (This issue of using referendum results as evidence of a majority position is further discussed below.)
Bringing cases to the ECHR opened a narrow space for more Irish women to speak of their experiences. In the past two weeks, cancer sufferer Michelle Harte has told how an ethics committee at Cork University Hospital decided that she was not eligible a lawful abortion before beginning her cancer treatment.
Such cases do not only bring home how necessary it is to have guidelines that will ensure that a woman’s interests are not subordinated to those of an undefined or ill-defined “unborn”. They also raise questions about the process of differentiating “ life” from “health”.2 Adequate information on all aspects of this issue should be collated before guidelines or legislation are drawn up. It is particularly important to collect annual statistics on the numbers of lawful abortions carried out in Ireland the numbers of applications rejected by hospital ethics committees and their grounds for decisions in these cases.
Developments following from the C case may be irrelevant to many of the Irish residents who exercise choice by travelling out of Ireland for abortions or attempting self-abortion. Women with money will always be able to terminate pregnancies while those who live in poverty have few options. Some, as in A’s case, borrow from a money lender at a high interest rate. [para.15] Perhaps it is not surprising that as many as 1,216 postal packages of early abortion pills were seized by Irish customs officials in 2009. Regardless of the dangers involved, for those who cannot afford to travel, a pill represents a real option – even if it is illegal in Ireland, should be taken under medical supervision, and taking it carries the threat of up to life imprisonment for self-abortion. As Ruane points out, this number “translates into three women a day ready to put themselves at risk because the Irish health and legal services exclude them.” 3
The court recognised the “significant psychological burden” and the added physical stresses travelling imposed on A and B [paras. 126 and 127] but, as Ruth Fletcher’s contribution to this blog suggests, its decisions in these cases are disturbing.4 One has to ask, why the court gives more weight to the state’s argument about “profound moral values” than it gives to women’s perceptions and experiences of a denial of rights? How can matters of moral values, or indeed an argument about “national morality” be measured by the ECHR.
This is a matter of enormous magnitude if such arguments can be invoked to solidify a two tiered system of rights in which Irish resident women are not guaranteed the same rights to bodily integrity, to health, and to well-being as their European sisters. Taking just one of the state’s arguments on this issue, during the 2009 hearing Paul Gallagher argued:
“The protection afforded under Irish law to the right to life of the unborn is based on profound moral values deeply imbedded in the fabric of Irish society and arrived at through a wholly democratic process involving, in all, three referenda.” (ECHR podcast 20095)
Now, the vote in a constitutional referendum is understood to be an expression of the democratic will of the people but no minimum turn-out is required and decisions are made by a simple majority of those who vote. A look at the turn-out and results in 1983 and 2002 suggests that, while the processes involved were democratic neither was a measure of national values in relation to abortion.
In 1983, only 53.67 per cent of the electorate went to the polls. While 66.9 per cent of these voted for the constitutional prohibition on abortion and 33.1 per cent voted against, the turnout hardly suggested national unity but did mean that the 8th Amendment was voted into the constitution by only 35.9 per cent of the electorate, a result that could hardly be judged to imply national unity on abortion.6 In 2002, only 42.89 per cent (just over two in five) of those eligible to vote went to the polls. Of these, 49.58 per cent of voters (21.26 per cent of the electorate) supported the 25th Amendment and 50.42 per cent of voters (21.62 percent of the electorate) rejected it. This meant that the government’s restrictive proposal was narrowly defeated by 10,548 votes and the result revealed an urban rural divide on the issue.7
Commentators on these referenda refer to apathy and confusion among voters. Indeed, in 1983 the Taoiseach Garrett Fitzgerald, made an eve of the poll address to the people in which he said that the wording he had proposed placing in the constitution was so ambiguous that he could no longer ask the electorate to support it. The major non-Catholic churches opposed the 1983 referendum as sectarian. Such referenda may represent democratic decisions but, if examined in detail, surely cannot be taken as a measure of national moral values.
The three 1992 referenda, perhaps, come closer to a statement of a national position at that time. Turnout was around 68 per cent because the poll was held on the same day as a general election. The electorate rejected the government’s proposal to roll back the X case judgement by a wide margin [only 34.65 per cent (less than a quarter of the electorate) voted for the proposal while 65.35 per cent (almost 45percent of the electorate) voted against]. It voted to allow access to information on abortion and not to restrict travel abroad to obtain abortions. These 1992 results suggest that, at that time, the public had little stomach for further restriction of abortion rights, censorship, or preventing access to abortion services. How can this be interpreted as national opposition to abortion? Yet, these decisions in the referenda of 1983, 1992 and 2002 appear to be among the matters the court considered outweighed a European consensus on abortion.
Six of the judges in the European Court of Human Rights, felt that all three women, A, B and C had established their cases against Ireland and that the failure of the majority of the judges to take account of this European consensus marked ‘a dangerous new departure in the Court’s case law.’ Their dissenting opinion is to be welcomed as it brings into focus the most profound questions about the status of women in Ireland, about the rights of Irish women as compared with our European sisters and about how the decision that Irish women should have lesser rights was arrived at. It is vitally important, not only in examining the present cases but for future ECHR cases, that the evidence on which that decision was based is thoroughly interrogated and any shortcomings in the decision making process identified.
1 Twenty-Fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill 2001 (http://www.oireachtas.ie/viewdoc.asp?fn=/documents/bills28/bills/2001/4801/default.htm ).
2 Carl O’Brien, “’Why is simple treatment not available even when a mother’s life is at risk?’” Irish Times, December 21, 2010 (http://www.irishtimes.com/newspaper/ireland/2010/1221/1224285991703.html ).
3 Medb Ruane: “Why turning to abortion care on the internet signals a real crisis in healthcare for women.” http://www.independent.ie/lifestyle/why-turning-to-abortion-care-on-the-internet-signals-a-real-crisis-in-healthcare-for-women-2400480.html
4 “The trouble with A, B and C: Guest Post from Ruth Fletcher” (http://www.humanrights.ie/index.php/2010/12/24/the-trouble-with-a-b-c-guest-post-from-ruth-fletcher/#more-11599 ).
6 Source of voting information in each referendum referred to: http://electionsireland.org/results/referendum/summary.cfm