The Grand Chamber of European Court of Human Rights has ruled unanimously that abortion must be more accessible in Ireland for women whose lives are at risk. It rejected applications that abortion must be more widely available in other circumstances.
The ruling does not represent a significant departure from the current state of Irish law – in that it does not require the state to legalise abortion more than it technically already has done – but the probable changes in the law may result in a general softening towards abortion in general, as, in theory at least, it will be much easier for women in life threatening situations to obtain an abortion. Up until now, the law has made it practically impossible to do so.
Moreover, the recognition that abortion falls under article 8 (the right to private and family life) may also lead in future to more wide-ranging judgments, along the lines of Roe v Wade in the United States.
The full background to the case can be found on the Human Rights in Ireland blog, which has also produced a handy guide to the European Court of Human Rights.The key point is that decisions of the Strasbourg court are binding on states which, like Ireland and the UK, are signatories to the European Convention. Under Article 46 of the European Convention, Ireland is obligated to “abide by the final judgment” of the European Court of Human Rights.
The case evokes to the 1973 United States Supreme Court decision in Roe v Wade, where it held that the constitutional right to privacy (the rough equivalent of article 8 of the European Convention) extends to a woman’s decision to have an abortion, but that right must be balanced against a state’s legitimate interests to restrict abortions. It was one of the most controversial legal judgments in US history, and many, particularly from a religious perspective, still argue that the Supreme Court went too far in interpreting constitutional principle.
Abortion is technically allowed in Ireland, but only if a woman’s life is at risk. The three women in this case argued that in practice, doctors could face imprisonment if it was found the woman’s life was not at risk, and as such abortions are almost impossible to obtain. It is estimated that over 4,000 Irish women per year have abortions abroad.
Three reasons for abortion
The applicants are three women who live in Ireland. All three applicants travelled to the UK to have an abortion after becoming pregnant unintentionally.
The women had different reasons for not wanting to continue with their pregnancies. The first applicant, a former alcoholic whose four children had been placed in foster care, decided to have an abortion to avoid jeopardising her chances of reuniting her family. The second applicant was not prepared to become a single parent. The third applicant, in remission from cancer and unaware that she was pregnant, underwent a series of check ups contraindicated during pregnancy.
Complaint to the European Court of Human Rights
All three women claimed that the impossibility for them to have an abortion in Ireland made the procedure unnecessarily expensive, complicated and traumatic. In particular, that restriction stigmatised and humiliated them and risked damaging their health and, in the third applicant’s case, even her life.
They all also complained under Article 8 (right to respect for family and private life) , that the national law on abortion was not sufficiently clear and precise, since the Constitutional term “unborn” was vague and the criminal prohibition on abortion was open to different interpretations.
Only the third applicant was successful.The court held that the third applicant’s article 8 rights were infringed as:
against this background of substantial uncertainty, the Court considers it evident that the criminal provisions of the 1861 Act would constitute a significant chilling factor for both women and doctors in the medical consultation process, regardless of whether or not prosecutions have in fact been pursued under that Act. Both the third applicant and any doctor ran a risk of a serious criminal conviction and imprisonment in the event that a decision taken in medical consultation, that the woman was entitled to an abortion in Ireland given the risk to her life, was later found not to accord with Article 40.3.3 of the Constitution. Doctors also risked professional disciplinary proceedings and serious sanctions.
The court accepted that implementation of the ruling would be difficult, but not impossible:
As to the burden which implementation of Article 40.3.3 would impose on the State, the Court accepts that this would be a sensitive and complex task. However, while it is not for this Court to indicate the most appropriate means for the State to comply with its positive obligations (Marckx v. Belgium judgment, § 58; Airey v. Ireland judgment, § 26; and B. v. France, § 63, all cited above), the Court notes that legislation in many Contracting States has specified the conditions governing access to a lawful abortion and put in place various implementing procedural and institutional procedures (Tysiąc v. Poland judgment, § 123). Equally, implementation could not be considered to involve significant detriment to the Irish public since it would amount to rendering effective a right already accorded, after referendum, by Article 40.3.3 of the Constitution.
The third applicant was awarded €15,000 in damages.
More detail on the case coming soon.
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