Ireland abortion ruling – the aftermath

24 December 2010 by

With the Pope giving his first “thought for the day” on this morning’s Today program, it seems a good opportunity to revisit the European Court of Human Right’s recent decision on abortion in Ireland. The emerging consensus is that the European court went no further than it needed to, and did little more than reasserting the status quo in Irish law.

The Pope, and the Roman Catholic Church which he heads, is against abortion. One of the effects of this is that states in which the Church is influential tend to have less liberal abortion laws. Ireland is such a state, and abortion is mostly illegal, except in certain very limited circumstances where the mother’s life is threatened.

Three woman took the Irish state to court in order to challenge that policy. The full background to the case can be found in my previous post, but in short summary, each of the three women had a different reason for wanting an abortion. The first (A) wanted avoid jeopardising her chances of reuniting her family. The second (B) was not prepared to become a single parent, and the third (C) could potentially have died as a result of the pregnancy. All three travelled to England to obtain abortions.

Only woman C succeeded. The court criticised Ireland for not making it easy enough to obtain an abortion even in circumstances where the baby threatened a mother’s life, and recommended legislation to fix this. But it declined to go further, concerned that the issue was too controversial to go further.

It is not unusual for the Strasbourg-based court to stop short of requiring a state to change a policy which is politically and religiously controversial. The justification tends to be that there is not enough of a consensus between European states on the issue to rule confidently that one view should win out over another.

However, in practice the court is not always consistent on when it decides to take a stand on an issue. Clearly in this instance, it had no appetite for a Roe v Wade moment. In other words, it probably wanted to avoid ruling on a religiously charged issue for fear of imperilling the legitimacy of its future judgments, as arguably the United States Supreme Court did when placed abortion under the protection of the right to privacy in the US Constitution.

Status quo revisited

The excellent Human Rights in Ireland Blog has published a series of comment pieces on the European decision. The consensus seems to be that the court left the status quo in place, not only in terms of Irish law but also as to European jurisprudence.

Dr Brenda Daly of the Socio-Legal Research Centre at Dublin City University argues that the decision was conservative:

In light of this ruling, it is clear that Irish abortion law ‘waters’ have not broken. The ECtHR’s decision is conservative, though consistent with the earlier approach taken in Tysiąc v Poland when it ruled that there had been a breach of the applicant’s right to a private life under Article 8 of the ECHR because Poland had failed to provide procedural and regulatory framework to determine disputes between the patient and medical specialists regarding access to abortion on therapeutic grounds… The resounding message from both of these decisions is quite simply that if abortion is permissible within a State on certain grounds, then the State has a positive duty under the Convention to ensure that effective and appropriate access is available to those individuals who wish to exercise their rights under both domestic law and the Convention.

Dr. Lisa Smyth of Queens University Belfast suggests that this latest episode in the once highly inflammatory abortion debate serves to demonstrate the downgraded status of the issue:

The demotion of abortion over the past 18 years from a defining national issue to an ambiguous and somewhat shameful legal-political situation which politicians would prefer to avoid, has taken place alongside the roller-coaster ride of the country’s economic success and then total collapse. This parallel scenario has re-ignited questions about Ireland’s ability to establish and sustain a viable and independent economy.

Dr Mary Gilmartin reminds us that C was not the only focus of the judgment:

Much commentary in the aftermath of the European Court of Human Rights’ judgment has focused on C. However, it is also important to pay attention to the findings in relation to A and B, because they highlight the differentiated politics of mobility in Ireland and in Europe. A, B and C are all European citizens: A and B are Irish, while C is Lithuanian. All were free to travel between Ireland and Britain: they did not require additional travel documents to do so. This is not the case for many women currently living in Ireland. Women from outside the EU may require a new visa to return to Ireland, or a separate visa to travel to the UK, or to another European country.

Dr Fiona Londras, a Human Rights in Ireland contributor, wrote in the Guardian that the decision shows that Ireland is in denial over abortion:

Even legislation will not end the abortion debate in Ireland. Women will still have to travel if they want a termination. Today’s decision doesn’t address that; it leaves the question of how broadly to cast access to abortion to the state itself. With an election looming and speculation as to the role abortion will play, these issues are central to our national discourse. But behind that discourse lie real women, real stories, and a regulatory vacuum that must be filled.

Finally, Máiréad Enright provides a useful Q&A on what is to happen next as a result of the judgment. She discusses the legal implications of the decision for Ireland, which highlights the tricky position of the ECHR in Ireland:

The state could ignore the ruling in A, B & C, much as it has ignored the exhortations of the judiciary, public bodies and national and international NGOs on this matter for years. Yesterday’s judgment does not form part of domestic law – that much is very clear from, for example, the judgment of the Supreme Court in McD v. L (discussing Article 29.6 of the constitution and the status of international agreements at Irish law). The European Convention on Human Rights Act 2003 does not give the Convention direct effect at Irish law.

When we say that Ireland is ‘required’ to take general measures to avoid future violations of Article 8 we refer to obligations under international law. Under Article 46 § 1 of the Convention Ireland has undertaken to abide by the final judgment of the Court in any case to which it is a party. Where a state is found by the European Court of Human Rights to be in breach of one of its Convention obligations, as Ireland was yesterday, the Committee of Ministers of the Council of Europe supervises the execution of the judgment, which should take place without ‘unjustifiable delay’.

So, an interesting but not groundbreaking decision. The European Court of Human Rights had no appetite to inflame a complex and religiously charged debate. Many will feel that it should have taken a stand, but given the strong influence of the Catholic Church on abortion issues in some European states – notably Ireland, Spain and Italy – it is unsurprising that it did not, as it has not in relation to gay marriage, another controversial issue where there is no consensus between states. It is to be hoped that the Irish state at least takes on the criticisms of its existing policy. The Pope will probably be happy with the decision.

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