Submission to the Joint Oireachtas Committee on Health and Children on Legislation to Give Effect to the Constitutional Right to Access an Abortion in limited circumstances
11th January 2013
Dr. Claire Murray, Lecturer in Law, University College Cork
- 1. Constitutional Position
Article 40.3.3 provides that “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”
The right to life of the unborn is protected under Irish constitutional law, but it is not an absolute right, and must be balanced with the equal right to life of the mother. In Attorney General v X (the X case) the Supreme Court, when interpreting Article 40.3.3, established that there is a right to a lawful abortion in Ireland in very limited circumstances i.e. where, as a matter of probability, there is a real and substantial risk to the life of the mother, including a risk to life through suicide, and that risk can only be removed through the termination of the pregnancy. The risk does not have to be immediate. In any circumstances outside that narrow situation e.g. where the health or well-being of the mother is at risk, there is currently no legal provision for an abortion in this jurisdiction. Therefore, if an abortion was carried out in circumstances which were subsequently found not to come within the test set out in the X case there is a risk, however small, of criminal sanctions for both the woman and anyone who assisted her.
In two subsequent referenda, in 1992 (proposed 12th Amendment) and in 2002 (proposed 25th Amendment) the people voted to reject proposals to remove the threat of suicide from the grounds for lawful abortion, which would have restricted the decision of the Supreme Court in the X case. The possibility of broadening the grounds on which abortion is lawful in Ireland has never been put to the people by way of referendum. Therefore it is settled law that it is lawful for a woman to access an abortion in this jurisdiction where it can be established as a matter of probability that there is a real and substantial risk to her life, as distinct from her health, which can only be avoided by the termination of her pregnancy. The difficulty is that there is no legal guidance available as to how to give effect to this right. This was the core issue in A, B, and C v Ireland.
- 2. The decision of the European Court of Human Rights in A, B and C v Ireland and the Government decision to legislate
The ECtHR found that the State’s failure to provide a framework to give effect to constitutionally permitted abortions was a breach of C’s right to private and family life. Under Article 8, the State has a positive obligation to provide effective and accessible means of protecting the right to respect for private life. The ECtHR concluded that the uncertainty around the implementation of Article 40.3.3 had resulted in “a striking discordance between the theoretical right to a lawful abortion in Ireland on grounds of a relevant risk to a woman’s life and the reality of its practical implementation.”
The ECtHR was quite clear in stating that there is no right to an abortion under the ECHR. A majority of the Court ruled that it was within the margin of appreciation afforded to the State the extent to which, if any, it allowed for abortions within the State. However, the ECtHR found that because Ireland had allowed for legal abortions within a very narrow set of circumstances i.e. within the terms of the X case, and therefore women already had a constitutional right to access abortions in Ireland where they satisfied the threshold, the State had an obligation to ensure that this right was an effective one in practice.
The decision of the ECtHR did not change the legal position on abortion in Ireland. It has not extended the circumstances in which an abortion in permissible. It merely requires us, as a State, to ensure that the rights we afford our citizens are real rather than illusory.
Following the Report of the Expert Group on the Judgment in A, B, and C v Ireland the Government has committed to introducing legislation, supported by regulations, to provide a clear framework for accessing abortions in this jurisdiction within the narrow constitutional grounds. This option was described by the Expert Group as being “constitutionally, legally and procedurally sound.”
- 3. Core issues for consideration in legislating for abortion in Ireland
- Repeal of sections 58 and 59 of the Offences Against the Person Act 1861
The ECtHR observed in the A, B and C case that the criminal provisions of the 1861 Act 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 made. The need to address this issue was further highlighted by the UN Special Rapporteur on the Right to Health who stated on his visit to Ireland in December 2012 that “criminal laws and other legal restrictions disempower women, who may be deterred from taking steps to protect their health, in order to avoid liability and out of fear of stigmatization.” While it may be considered necessary to guard against unlawful abortion in the jurisdiction it is not necessary to do so by means of an extremely outdated provision of the criminal law.
- Procedure for determining when the constitutional test is satisfied
The question of when there is a risk to the life of the mother is a clinical decision. The purpose of the legislation is to set out a clear procedure within which these clinical decisions can be made. It is important that the procedure included in the legislation is not too burdensome. This is a medical procedure and should not become too adversarial or too bureaucratic. It is also vital that the clinical decisions are made in a timely manner to enable women to make appropriate healthcare choices. The recommendation by the Expert Group that two doctors be involved in the process is sensible. It is crucial that a formal review process be established for circumstances where there is a disagreement between the woman and the medical professionals involved or between doctors. The review body should be independent, competent to review the reasons for the decision and the relevant evidence, there should be a possibility for the woman to heard, the body should issue written reasons for its decision, and the decisions must be timely.
- The risk of suicide
A threat to the life of the mother, including by reason of a threat of suicide, is part of the test set down by the Supreme Court in the X case. It is therefore settled law and must be included in the statutory provisions relating to abortion. As noted above the Irish people have twice rejected the possibility of removing the risk of suicide from the test. It is deeply disrespectful towards women to suggest that including a provision to this effect in the legislation will result in women fabricating suicidal ideation in order to obtain an abortion in this jurisdiction. This suggestion also contributes to further stigmatisation of persons with mental health difficulties. There is no justification for including in the statutory scheme a different procedure to determine if there is a real and substantial threat to the life of the mother where that threat arises as a result of suicidal ideation, particularly where the suggestion appears to be that the threshold would be higher in these circumstances because of the risk of fraud. To do so would be unjustifiably discriminatory.
- 4. Beyond legislation for X
Any legislation introduced cannot go beyond what is currently constitutionally permissible. Therefore legislation in accordance with the decision of the Supreme Court in the X case will not allow for access to abortion in circumstances where the health of the woman is at risk or where the pregnancy is the result of a rape. However, a recent opinion poll suggested that 82% of the electorate would support the availability of abortion in these circumstances. It is also not yet clear whether the current constitutional position includes cases of fatal foetal abnormalities, given that the life of the mother is not at risk in these circumstances, and the courts have not yet interpreted how the right to life of the unborn applies in such a difficult and traumatic situation. The result is that many women travel abroad to access abortions in these circumstances. Introducing legislation to give effect to the decision in the X case will not address these issues and therefore a mature debate on how the State will meet the needs of these women is required. Broadening the grounds on which abortion is available in Ireland would require the repeal, by way of referendum, of the 8th Amendment to the Constitution.
Author Profile: This submission is made by Dr. Claire Murray, Lecturer in the Department and Faculty of Law, University College Cork. Dr. Murray is a graduate of UCC (BCL, PGCTLHE, PGDTLHE, PhD) and Kings Inns (BL). She researches in the areas of mental health law, feminist theories of rights and family law. She lectures in welfare law, family law and tort law and is a coordinator of the Gender, Law and Sexuality research initiative within the Law Department in UCC. Dr. Murray holds a pro-choice position on abortion.
  2 IR 1.
 Section 58 of the Offences Against the Person Act 1861 criminalises abortion and states that a person who procures a miscarriage “shall be guilty of a felony, and being convicted thereof shall be liable to be kept in penal servitude for life.” Section 59 further provides that anyone who assists in procuring a miscarriage through the provision of drugs or instruments shall be guilty of a misdemeanour.
  ECHR 2032.
 The margin of appreciation allows States to interfere with rights to the degree to which it is necessary and proportionate in a democratic society.
 Report of the Expert Group, page 49.
 Expert Group Report, page 32.
 Expert Group Report, page 38.
 Sunday Business Post/Red C opinion poll published on December 2nd 2012.