Irish Times Wednesday July 29th 2008
State faces defeat over abortion law in court of human rights
The women who claim Irish abortion law is deficient will win their case unless Ireland settles it with legislation, writes Adam McAuley.
THE EUROPEAN Court of Human Rights will judge the legality of Irish abortion law in the near future. Three Irish women are claiming that their rights under the European Convention on Human Rights were violated because of the deficiencies in Irish abortion law. This is not the first time that the court has addressed the sensitive issue of abortion.
Two types of abortion cases have come before this court.
The first involves a claim that the convention confers a right to life on the unborn child or a right to abortion for a woman. The court has adopted an equivocal approach in these types of cases because the convention contains no reference to the unborn child or abortion.
For example, the convention protects the right to life of "everyone".
Unlike the Constitution, the convention is silent as to whether this protection extends to the unborn child.
There are exceptions to the right to life, such as the use of reasonable force in self-defence. Abortion is not listed as an exception. Therefore, the court has refused to rule that an unborn child has a right to life or that a woman has a right to abortion.
Assuming that the unborn child has a right to life, the court has stated that any right of the unborn may be limited by the mother's rights and interests, such as her right to "life and health". This suggests that a right to abortion may exist to protect the mother's rights to life and health.
The three Irish women may claim that Irish law breaches the convention because Irish law will permit an abortion only where there is a real and substantial risk to a woman's life. A risk to the mother's health is insufficient.
The European court has tentatively suggested that a threat to the mother's health could justify an abortion. It is unlikely that the court will rule that Irish law breaches the convention by failing to allow for abortion on health grounds. The reason for this is the approaches of other states to abortion.
The court has reviewed these approaches in previous cases and found that states have adopted different approaches which range from conservative to liberal. Where there is a wide spectrum of state approaches to an issue, the court grants states a "wide margin of appreciation" to determine their law.
However, these Irish women's claim will succeed as it involves the second type of abortion cases brought before the court. This involves a claim that the operation of a state's abortion law in practice is incompatible with the convention.
In 2007, the court assessed the operation of Poland's abortion law, which permits abortion under certain exceptions, such as a risk to a woman's life or health. A doctor commits a criminal offence if an abortion is performed outside these exceptions. A doctor must certify that an abortion is necessary to safeguard the woman's life or health.
The certifying doctor could not be the doctor who will perform the abortion.
In the Polish case, a woman sought an abortion because the birth threatened her limited eyesight. A doctor certified that the pregnancy was a threat to the woman's health. Another doctor disagreed with this opinion and no abortion was performed.
After the birth of the child, it was discovered that the woman's eyesight had deteriorated and there was a risk of blindness. The woman claimed that Poland had violated her right to physical integrity under the convention by failing to provide her with access to a therapeutic abortion.
The court decided that every state has a positive duty to secure respect for a person's physical and psychological integrity. It found that Poland had breached the woman's right by failing to implement procedural safeguards regarding access to a therapeutic abortion. The court decided that the law must, first and foremost, ensure clarity of the pregnant woman's legal position.
The court suggested that Polish law should establish a procedure before an independent body which could review reasons for the abortion and relevant evidence. This procedure should allow a pregnant woman to be heard in person in order to have her views considered. The independent body should also issue written grounds for its decision.
The court recognised that time is of the essence. It noted that the laws of Bulgaria, Croatia, Czech Republic, Denmark, Finland, Norway, Slovakia, Slovenia and Sweden had recognised the need to protect women's right to legal abortion in situations where a doctor denies such a request, including in cases where a woman's health was at risk.
The court found that the operation of the Polish law created for the woman a situation of prolonged uncertainty. As a result, she suffered severe distress and anguish.
The three Irish women will succeed because Irish abortion law is in a worse state than the invalid Polish law.
In the X case, the Supreme Court established a principle that abortion is lawful in very limited circumstances.
The people voted in favour of constitutional amendments guaranteeing the rights to travel and information in 1992, and against two amendments on abortion in 1992 and 2002. Therefore, the law on abortion remains the principle in X.
Legislation is necessary to regulate the operation of this principle in practice. In the absence of legislation, there is no process by which a woman can seek an abortion.
It is uncertain as to what exact circumstances must exist before a doctor can perform a therapeutic abortion. Finally, there is no established procedure for a woman who has been refused an abortion by a doctor.
The failure of successive governments to legislate is understandable - abortion legislation may cost votes. The European Court of Human Rights will ignore this political consideration when assessing Ireland's abortion law.
Ireland can settle the case by undertaking to propose legislation reflecting the approach set out by the European court in the Polish case. Such legislation would clarify the operation of the law for women and the medical profession. Surely, this is a better approach than fighting a case that Ireland looks certain to lose.
Dr Adam McAuley is a law lecturer in the school of law and government at Dublin City University