Una Mulally The Sunday Tribune Sunday December 13th 2009
In Strasbourg's European Court of Human Rights last week, three women who claimed their human rights were infringed upon by being forced to travel to Britain for abortions brought their case to be heard. They are known as A, B, and C. A's children had already been taken into care when she was pregnant. She had suffered from substance abuse and post-natal depression and knew she wouldn't have been able to care for another child. B, who had taken a morning-after pill, had concerns over an ectopic pregnancy. C was in remission from cancer when pregnant, and failed to gain solid medical advice about what the impact of chemotherapy would have on her foetus.
The state feels so strongly about maintaining the ban on abortion that it dispatched an eight-strong legal dream team to Strasbourg, Attorney General Paul Gallagher, Donal O'Donnell SC and Brian Murray SC among them. In his address to 17 judges on Wednesday, Gallagher said that Ireland's ban on abortion was "based on moral values deeply embedded in Irish society". You can insert your own snide joke about 'morals' and 'Irish society' here.
The same court ruled against a state in 2007, when a Polish woman brought a case against her country after being forced to carry a pregnancy to full term in spite of concerns about her eyesight (she was visually impaired, and upon giving birth suffered haemorrhages in her retina and is facing a serious risk of complete blindness). The court ruled that Poland violated Article 8 of the European Convention on Human Rights, which states that everyone has the right to respect for their private and family life, home and correspondence.
So although Lisbon 2 reaffirmed the protection of the right to life in Article 40.3.3 of the Irish constitution, the state could be in trouble here, as it is obliged to listen and act on the court's ruling, something that could provide a gigantic headache for a government in disarray, that is, if it's still in existence in mid-2010 when the ruling will be made.
No one is asking a European court to foist its opinions and rulings on our constitution. But the fact that it has come to this is our fault. The Irish state has for generations ignored this issue.
Abortion is a reality in Ireland. An Irish woman having an abortion across a narrow strip of sea is still an Irish abortion, even if we insist on palming off a very Irish problem onto our British neighbours.
The state's argument that this case should be kicked back to Irish courts is also redundant. It is not up to our courts to create legislation, nor should they have to make judgements on bad law. There needs to be legislation in place to both acknowledge the reality of Irish abortions and clarify the existing murky laws.
Ann Furedi, the chief executive of the British Pregnancy Advisory Service, wrote last week: "The illegality of abortion at home [Ireland] has consequences even for those women wealthy enough and informed enough to travel. It means they have limited opportunity for counselling before they come here, and little access to aftercare when they return home. They carry the emotional burden of seeing an 'illicit' solution. The truth needs to be heard. Legal abortion is safe and benefits society. And Ireland can only exist as a modern society because of abortion clinics in England."
The Attorney General argues that A, B, and C have "no specifics with regard to the alleged refusal of treatment, the inability to provide treatment, the concerns that treatment would be refused or they would be disapproved if they sought treatment".
But evidence repeatedly shows how women travelling for abortions feel – the shame imposed upon them by the nature of abortion's illegality in Ireland, their reluctance to seek aftercare, the secrecy, the financial strain, the lack of closure because abortion is the unmentionable.
If the state legal team wants 'specifics' on this, then talk to 7,000 women who travel abroad annually for abortions. Don't just assume that these 'specifics' don't exist just because they aren't talked about.
Those specifics were courageously described by Amy Dunne, the young woman known as Miss D, whose case became headline news when the HSE, in whose care she was living, banned her from travelling to Britain for an abortion even though her baby could not be born alive.
She went public on Prime Time last Thursday, describing the ordeal of her court case as she ran the gauntlet of pro-life protestors and told of what it felt like to rely on the comfort of strangers in a hospital where nobody understood her case. Every specific was an ordeal for Amy – right down to not knowing how to arrange to bring home a tiny white coffin.