European court to rule on Irish abortion laws *

Irish Times
10.12.2010
By CARL O’BRIEN

THE EUROPEAN Court of Human Rights will next week issue a ruling on whether Ireland’s restrictions on abortion violate women’s human rights.

The ruling, which could have significant implications for Irish abortion law, is based on a case taken by three women in Ireland who say their health was put at risk by being forced to go abroad for abortions.

The court is due to issue its ruling at a public sitting of the court’s grand chamber next Thursday, rather than a more common written judgment.

The Strasbourg-based court, which is separate from the EU, adjudicates on human rights issues among all 47 member states of the Council of Europe.

As a signatory to the European Convention on Human Rightsnow incorporated into Irish law – the Government is obliged to remedy any breaches of the convention.

The identities of the women – known as A, B and C – are confidential.

All of them travelled to the UK to have an abortion after becoming pregnant unintentionally.

They include a woman who ran the risk of an ectopic pregnancy, where the foetus develops outside the womb; a woman who received chemotherapy for cancer; and a woman whose children were placed in care as she was unable to cope.

The ruling could have significant implications for abortion law in Ireland.

All judgments of the court are binding on the state involved, meaning that signatories are expected to change their laws to accommodate the rulings.

If the court rules that the women’s rights were breached, it is likely the Government would be under pressure to legislate for abortion under the circumstances of the 1992 “X” case, where the Supreme Court ruled that terminating a pregnancy was lawful where the life and health of the mother were at risk.

Equally, however, the court could rule that the availability of medical treatment, support and advice in Ireland meant the women’s rights were not breached; or that the applicants should have their cases heard first in Irish courts to satisfy the requirement of the convention to avail of all domestic legal remedies.

The women – supported by the Irish Family Planning Association – argued before the court last December that they were subject to indignity, stigmatisation and ill-health as a result of being forced to travel abroad for their abortions.

The Government, however, robustly defended the laws and said that Ireland’s abortion laws were based on “profound moral values deeply embedded in Irish society”.

However, it maintained that the women’s challenge sought to undermine these principles and align Ireland with countries with more liberal abortion laws.

In a statement yesterday, Dr Ruth Cullen of the Pro Life Campaign – which participated in the case as a third party – said the court had a strong duty to make clear the distinction between abortion and necessary medical treatments in pregnancy.

However, the Irish Family Planning Association’s chief executive, Niall Behan, said that the experiences of the three women illustrated the reality faced by thousands of women in Ireland every year.

“Clients attending for counselling with the IFPA continually express anger and frustration that they have to travel outside of the jurisdiction for health services they feel should be available to them at home,” he said.

Full article
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Editor Note:

The right to life of the unborn with due regard to the equal right to life of the mother, is enshrined in the Irish constitution as voted for by Irish people in a Referendum and which can only be changed by Irish people in a Referendum. But as the above article highlights that since the European Convention on Human Rights is now incorporated into Irish law as it was attached to the Lisbon Treaty Referendum, the Irish Government will have to abide by the court decision, even when dealing with a clear Constitutional issue.

The Lisbon Treaty Referendum also made it clear that no provision of the Irish Constitution invalidates laws enacted, acts done or measures adopted by the Irish State, that are necessitated by the obligations of membership of the European Union or prevents laws enacted, acts done or measures adopted by bodies competent under the treaties referred to from having the force of law in the State.

Constitution of Ireland

Article 29.4

5° The State may ratify the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon on the 13th day of December 2007 (“Treaty of Lisbon”), and may be a member of the European Union established by virtue of that Treaty.

6° No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State, before, on or after the entry into force of the Treaty of Lisbon, that are necessitated by the obligations of membership of the European Union referred to in subsection 5° of this section or of the European Atomic Energy Community, or prevents laws enacted, acts done or measures adopted by —

i the said European Union or the European Atomic Energy
Community, or institutions thereof,

ii the European Communities or European Union existing
immediately before the entry into force of the Treaty of
Lisbon, or institutions thereof, or

iii bodies competent under the treaties referred to in this
section, from having the force of law in the State.

Article 40.3

3° 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.

This subsection shall not limit freedom to travel between the State and another state.

This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.

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