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Does Ireland's Abortion Law Violate Human Rights?

5 years ago
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Well, Ria and Melinda, it looks like you aren't the only ones questioning whose rights are really at stake in the abortion debate. Yesterday, in a potentially landmark case, the European Court of Human Rights (ECHR) in Strasbourg, France, heard the case of three women seeking to overturn Ireland's strict abortion law on the grounds that it violated their human rights.

To understand the genesis of the case, you need to know a bit about the state of abortion laws in Ireland. Ireland has one of the most restrictive abortion laws in the world. Abortion was outlawed there in 1861 and can bring a sentence of life imprisonment. The Irish constitution was further amended in 1983 to include the "Pro-Life Amendment," which asserted that the unborn child had an explicit right to life from conception.

In 1992, the Supreme Court ruled that abortion is permitted where there is a real and substantial risk to the life of the mother (including the risk of suicide). In practice, however, successive governments have shied away from ensuring protections for medical practitioners who perform those abortions, or introducing laws to clarify the legal status of the unborn. Because of this murkiness - at least according to the plaintiff's lawyers in the case at hand -- doctors have been scared of performing even legal abortions for fear of losing their medical licenses or facing potential life imprisonment.

As a result, many women -- nearly 140,000 in the last 30 years -- travel outside the country to obtain an abortion (usually to the U.K.).

Which brings us to this lawsuit. The three plaintiffs include a woman at risk for an ectopic (extra-uterine) pregnancy, a woman undergoing chemotherapy, and a woman with substance-abuse problems who's already had several children removed from her care. Backed by the Irish Family Planning Association and the British Pregnancy Advisory Service, these women -- identified only as "A, B and C" in court documents -- say that being forced to travel abroad for abortions endangered their "health and well-being" as safeguarded by the European Convention on Human Rights.

Specifically, the plaintiffs claim that by requiring women to travel abroad for medical care, the Irish legislation violates Articles 2, 3, 8 and 14 of the Convention: the right to life, the prohibition on torture, the right to respect family and private life, and the prohibition against discrimination. According to their lawyer, they suffered "indignity, stigmatization and ill-health" because they lacked effective remedy in their own country.

The ECHR -- which is separate from the EU -- adjudicates on human rights issues among all 47 member states of the Council of Europe. As a sign of the potentially far-reaching significance of this particular case, it was heard before a 17-judge "Grand Chamber" of the Human Rights Court, instead of the usual seven-judge hearing.

For starters, the outcome may very well end up changing abortion law in Ireland. As a signatory to the European Convention on Human Rights, the Irish government is obligated to try to implement whatever decisions are made by this court. Thus, if Ireland is found to be in violation of the Convention, it is not inconceivable that abortion may become available there under broader circumstances than is currently the case. Two years ago, this same court found in favor of a Polish woman denied an abortion despite medical recognition that the pregnancy endangered her eyesight. The Polish government was forced to pay her compensation and to provide a legal framework for access to lawful, medically needed abortions.

The ruling may also affect abortion law in other parts of Europe. If the court rules in favor of the three women, this would establish a new minimum degree of protection to which a woman seeking an abortion would be entitled under the European Convention (e.g. to safeguard her health and well-being). And that would be binding in all member states, including countries like Malta, which has even stricter abortion laws.

Which brings us to sovereignty. However you feel about the abortion debate, this case has very interesting sovereignty implications. Ironically, Ireland was one of the very last countries to ratify the Lisbon Treaty, and thus secure the future of the EU. But Irish voters approved the agreement only after the Irish government secured extensive guarantees that the treaty would not affect the country's abortion laws. Now, it looks as if the threat won't be from the EU but the Council of Europe, an international body that sets standards for and enforces human rights in Europe.

Not surprisingly, this case is being closely watched by many observers -- including some in America. They argue that legal precedents on abortion in the international sphere might well impinge on American jurisprudence domestically. It's not a far-fetched notion, or -- in my opinion -- an unwelcome one.

Follow Delia on Twitter.


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