Submission to the Oireachtas Committee on Health and Children, on the implementation of the A.B.C. v Ireland (Application no. 25579/05) Judgment 16 December 2010, European Court of Human Rights.
I welcome this opportunity to make a submission to the Joint Committee on Health and Children on Ireland’s response to the A,B, and C v Ireland judgement of the European Court of Human Rights. (Application no. 25579/05) Judgment 16 December 2010
In its judgment delivered 16th December 2010 in the case of A.B.C. v Ireland (Application no. 25579/05) Judgment 16 December 2010, the Grand Chamber of the European Court of Human Rights found that there had been a violation of the State’s obligations under Article 8 in respect of the third applicant C:
“the authorities failed to comply with their positive obligation to secure to the third applicant effective respect for her private life by reason of the absence of any implementing legislative or regulatory regime providing an accessible and effective procedure by which the third applicant could have established whether she qualified for a lawful abortion in Ireland in accordance with Article 40.3.3 of the Constitution.” (para.267)
It now falls to the Government to implement the Court’s judgment, under the supervision of the Committee of Ministers of the Council of Europe, according to Article 46 of the European Convention of Human Rights.
A legislative framework
A key question facing the Government is what form the implementation of the judgment at a domestic level will take and whether legislation is required to give effect to the State’s obligations under Article 8 ECHR.
As noted in the extract cited above (para.267), the Court identified the ‘absence of any implementing legislative or regulatory regime’ (emphasis added) as central to its finding of a violation of Article 8 in respect of the third applicant. This comment suggests that either a legislative or regulatory regime could satisfy the State’s positive obligations under Article 8. It should be noted, however, that at several points throughout the judgment, the Court pointed to the specific difficulties that arise because of the absence of a legislative framework to give effect to Article 40.3.3° of the Constitution. See, for example:
The Court considers that the uncertainty generated by the lack of legislative implementation of Article 40.3.3, and more particularly by the lack of effective and accessible procedures to establish a right to an abortion under that provision, has 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 (at para 264).(emphasis added)
At para 266 of its judgment, the Court noted that while it would not indicate the most appropriate means for the State to comply with its positive obligations (citing Marckx v. Belgium judgment, § 58; Airey v. Ireland judgment, § 26; and B. v. France, § 63), legislation had been adopted in many Contracting States. Such legislation had served to:
…specify the conditions governing access to a lawful abortion and put in place various implementing procedural and institutional procedures (Tysiąc v. Poland judgment, § 123).
On his 2011 visit to Ireland, the Council of Europe Commissioner for Human Rights, Mr Thomas Hammarberg, reiterated his previous recommendation to clarify the scope of legal abortions through a coherent legal framework including adequate services in line with domestic jurisprudence and the European Court of Human Rights case law, without further delay.
The absence of a legislative framework to give effect to Article 40.3.3° has been the subject of criticism by the Irish courts and in domestic policy documents. In Attorney General v. X and Others  1 IR 1, Mr Justice McCarthy, in an oft-cited judgment, reflected on the lack of legislation implementing Article 40.3.3°:
I think it reasonable, […], to hold that the People when enacting the Amendment were entitled to believe that legislation would be introduced so as to regulate the manner in which the right to life of the unborn and the right to life of the mother could be reconciled.
[…] the failure by the legislature to enact the appropriate legislation is no longer just unfortunate; it is inexcusable. What are pregnant women to do? What are the parents of a pregnant girl under age to do? What are the medical profession to do? They have no guidelines save what may be gleaned from the judgments in this case. What additional considerations are there? […] The Amendment, born of public disquiet, historically divisive of our people, guaranteeing in its laws to respect and by its laws to defend the right to life of the unborn, remains bare of legislative direction… (paras.146-147) (emphasis added)
In the Attorney General (S.P.U.C.) v. Open Door Counselling  I.R. 593, Mr Justice Finlay C.J. found it:
…unfortunate that the [Parliament] has not enacted any legislation at all in respect of this constitutionally guaranteed right.
The European Court of Human Rights also pointed out that several policy and political documents had recognised the need for greater clarity in the legal framework regulating abortion in Ireland. In 1996, the Report of the Constitution Review Group recommended the adoption of legislation to regulate the application of Article 40.3.3. Such legislation, it was noted, should include a certification process by medical specialists and a time-limit for any certified termination in the case of an abortion considered lawful under Article 40.3.3°
The 1999 Green Paper on Abortion, in discussing the possible options available for abortion reform, noted the potential advantages of legislation in this area. It would:
Provide a “framework within which the need for an abortion could be assessed, rather than resolving the question on a case-by-case basis before the courts, with all the attendant publicity and debate”;
Allow “pregnant women who establish that there is a real and substantial risk to the their life to have an abortion in Ireland rather than travelling out of the jurisdiction”; and
Provide legal protection for medical and other personnel involved in a procedure to terminate the pregnancy in Ireland.
Against the background of ‘substantial uncertainty,’ the European Court of Human Rights concluded that the criminal provisions of the 1861 Act constitute,
‘a significant chilling factor for both women and doctors in the medical consultation process’ (para. 254).
In addition to the risk of criminal sanction, doctors also risked professional disciplinary proceedings. As the Court also noted, the Review Group Report 1996, the Green Paper 1999 and the Fifth Progress Report on Abortion 2000, each expressed concerns about the lack of legal protection for medical personnel in Ireland in the context of decision-making on the lawfulness of a termination of pregnancy.
The Expert Group on the Implementation of the A,B and C v Ireland judgment notes the greater clarity that would come with legislation, and regulations, to give effect to both the X and A, B and C judgments.
Procedural Safeguards: Decision making processes
In its Judgment of December 16th 2010 in A,B and C v Ireland, the European Court of Human Rights rejected the argument that:
‘[…] the normal process of medical consultation could be considered an effective means of determining whether an abortion may be lawfully performed in Ireland on the ground of a risk to life.’ (para. 255)
As was noted by the Court, there is no framework whereby any difference of opinion can be examined and resolved, and which would establish:
‘as a matter of law whether a particular case presented a qualifying risk to a woman’s life such that a lawful abortion might be performed.’ (para 253)
In the recent case of P and S v Poland, (Application no. 57375/08), the European Court of Human Rights recognised the significance of timely decision-making:
The nature of the issues involved in a woman’s decision to terminate a pregnancy or not is such that the time factor is of critical importance. The procedures in place should therefore ensure that such decisions are taken in good time. (para 111)
The possibility of determining the lawfulness of an abortion to be carried out in Ireland through recourse to the courts, was also dismissed by the European Court of Human Rights, echoing the views expressed by the Irish High Court in, A and B v. Eastern Health Board, Judge Mary Fahy and C, and the Attorney General (notice party),  1 IR 464 (“the C case”):
[…] I think it highly undesirable for the courts to develop a jurisprudence under which questions of disputed rights to have a termination of pregnancy can only be determined by plenary action in the High Court. […] it would be wrong to turn the High Court into some kind of licensing authority for abortions.
The UN Committee Against Torture has recommended that Ireland
“clarify the scope of legal abortion through statutory law and provide for adequate procedures to challenge differing medical opinions as well as adequate services for carrying out abortions in the State party, so that its law and practice is in conformity with the Convention.” Committee against Torture, concluding observations on Ireland, UN Doc AT/C/IRL/CO/1. (2011), para. 26.UN CAT
At a seminar on the A,B, and C judgment, hosted by the Centre for Criminal Justice and Human Rights, University College Cork, Mr Juris Rudevskis, (lawyer at the Registrar of the European Court of Human Rights) noted that it was not clear under the current legal framework, how the Irish courts would enforce a mandatory order requiring doctors to carry out an abortion. He concluded that the legal framework should not be shaped in a way that would ‘limit real possibilities to have access to abortion.’ It should, he said, ensure clarity of the pregnant woman’s legal position.
Mr Rudevskis, drawing on the case law of the European Court of Human Rights, concluded that the procedural safeguards required for situations where a disagreement arises as to whether the preconditions for a legal abortion are satisfied in a given case, should be the following: 
[…] first, they should take place before an independent body competent to review the reasons for the measures and the relevant evidence and to issue written grounds for its decision;
second, the pregnant woman should be heard in person and have her views considered;
third, the decisions should be timely, and;
fourth, the whole decision-making procedure should be fair and afford due respect to the various interests safeguarded by it.
Risks to life and health arising from mental health problems / illness, including suicide ideation
The right to the highest attainable standard of health, protected by the International Covenant on Economic Social and Cultural Rights includes both physical and mental health. The European Court of Human Rights has also recognised that mental health and the ‘preservation of mental stability’ is an ‘indispensable precondition’ to the enjoyment of the right to private life, protected by Article 8 ECHR. Bensaid v. the United Kingdom (Application no. 44599/98).
Access to a safe and legal abortion in cases of a non-viable foetus
In the case of KL v Peru, the UN Human Rights Committee found that the denial of a therapeutic abortion to a 17 year old girl who was pregnant with an anencephalic foetus was a denial of her rights under Articles 2, 7, 17 and 24 of the International Covenant on Civil and Political Rights. Notably the Human Rights Committee’s finding of an Article 7 violation (prohibition of torture, cruel and inhuman and degrading treatment or punishment) did not depend on the lawfulness of the procedure. The Committee recognised therefore that both legal and practical obstacles to a therapeutic abortion could violate the State’s obligations under the ICCPR.
The right of access to a safe and legal abortion in cases where the foetus is non viable was implicitly acknowledged by the Irish Government as protected under Irish constitutional law in the admissibility hearing before the European Court of Human Rights in D v Ireland (Application no. 26499/02) . Specifically the Government in challenging the failure to exhaust domestic remedies argued:
[…] although it was true that Article 40.3.3 had to be understood as excluding a liberal abortion regime, the courts were nonetheless unlikely to interpret the provision with remorseless logic particularly when the facts were exceptional. If therefore it had been established that there was no realistic prospect of the foetus being born alive, then there was “at least a tenable” argument which would be seriously considered by the domestic courts to the effect that the foetus was not an “unborn” for the purposes of Article 40.3.3 or that, even if it was an “unborn”, its right to life was not actually engaged as it had no prospect of life outside the womb. (para 69)
Permitting abortion in circumstances beyond a ‘real and substantial risk’ to the life of the mother
Ireland’s abortion law has attracted criticism from UN treaty bodies. In 2005, the UN Committee on the Elimination of All Forms of Discrimination against Women expressed its concern at the consequences of Ireland’s ‘very restrictive abortion laws’.
The UN Human Rights Committee has highlighted Ireland’s obligations under Article 7 of the International Covenant on Civil and Political Rights, pointing out that compelling a woman to continue with a pregnancy, particularly where that pregnancy is a result of rape, may be in violation of the prohibition on torture, cruel, inhuman and degrading treatment. In its Concluding Observations on Ireland’s Third Periodic Report under the ICCPR, the UN Human Rights Committee (2008) reiterated its concern regarding the highly restrictive circumstances under which women can lawfully have an abortion in the State.
In Attorney General v. X and Others  1 IR 1, Mr Justice McCarthy asked:
Is the victim of rape, statutory or otherwise, or the victim of incest, finding herself pregnant, to be assessed in a manner different from others?
The UN Special Rapporteur on Health has stated that criminal laws and other legal restrictions on sexual and reproductive health may have a negative impact on the right to health in many ways, including by interfering with human dignity. Dignity, he says:
[…] requires that individuals are free to make personal decisions without interference from the State, especially in an area as important and intimate as sexual and reproductive health.
The UN Special Rapporteur has noted that it is only in the ‘most severe cases’, that abortion is completely criminalized without exception — a situation that exists in only a handful of States — or allowed only to save the life of the woman. Ireland currently falls within this handful of ‘most severe cases’. He goes on to note that:
Approximately 25 per cent of the world’s population lives under legal regimes that prohibit all abortions except for those following rape or incest, as well as those necessary to save a woman’s life. Slightly less restrictive legal regimes permit abortion on a number of physical health, mental health and socio-economic grounds, such as poverty and number of children. Finally, abortion is unrestricted on any grounds in 56 States, though limits still exist with respect to how late in pregnancy. (para. 23)
There is now a consensus on the right to access to a safe and legal abortion in specified circumstances in most Member States of the Council of Europe. All but five (including Ireland) of the Members permit abortion to protect both the life and the health of the pregnant woman. Most Member States also allow access to abortion for wider socio economic reasons or upon request within gestational time limits.
While conscientious objection on the part of medical personnel can be accommodated within international human rights law, the State has an obligation to ensure that the life of a pregnant woman is not endangered as a result of a refusal to perform a life-saving medical procedure, including abortion. (See: Report of the UN Special Rapporteur on the Right to Health (2011)).
The European Court of Human Rights has stated that:
“States are obliged to organise their health service system in such a way as to ensure that the effective exercise of freedom of conscience by health professionals in a professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation”; R.R. v. Poland, (Application no. 27617/04), May 26, 2011, para. 206.
Given the above, it is clear that steps to put in place a comprehensive, fair and accessible legal framework to effectively vindicate the right to a safe and legal abortion are urgently required. As was noted in another case involving this State: Airey v Ireland:
“the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective” (para. 24).
Professor Siobhán Mullally
Faculty of Law
Coordinator, Gender Law and Sexuality research initiative (GLAS)
Director, LLM in International Human Rights Law
University College Cork
 Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visit to Ireland, CommDH(2011)27 / 15 September 2011, para.48
 J Rudevskis ‘Abortion and the Case Law of the European Court of Human Rights’, paper presented at the Centre for Criminal Justice and Human Rights, Nov 10th 2011. (copy on file with the author).
 Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, UN Doc. A/66/254, August 3, 2011, para.15