The Irish Abortion Ban Case


The European Court of Human Rights has agreed to hear the challenge by three women in Ireland to the Irish government’s ban on abortion in a full hearing before its grand chamber of 17 judges. The three Irish women, represented by the Irish Family Planning Association , claim their rights were denied when they were forced to terminate their pregnancies outside Ireland.

The court in Strasbourg adjudicates on human rights issues among the 47 states of the Council of Europe. Any decision of the court is binding on all lower chambers and on all member states and must be complied with, except if it consists of an advisory opinion. The court’s decision to hold a hearing before the grand chamber rather than a smaller chamber of seven judges is regarded by legal experts as a sign of the significance of the issues at stake. This abortion case has a particular gravity because it is the first direct challenge to Irish abortion law by a group of women.

Roger Kiska, legal counsel for the pro-life legal group Alliance Defense Fund, told the independent news agency that this abortion case could set an official policy on the issue for Europe, “No one should be allowed to decide that an innocent life is worthless. Ireland’s constitutional amendment defending innocent life is under attack, and now the stakes have just gotten higher. With the case moving to the Grand Chamber, the ramifications of the decision that is eventually reached in the case are massive. The case is not only pivotal to Europe; it is pivotal to America as well. With ever-greater frequency, American courts have considered what other countries are doing when deciding their own cases. This case could be the Roe v. Wade of Europe, so its importance should not be underestimated.”

The abortion case focuses on whether the women's human rights were infringed because they were unable to terminate their pregnancies in Ireland. The women claim the restrictive nature of Irish law on abortion jeopardized their health and well being. The Irish law created delays and hardships for each woman, resulting in each of them having a later abortion, creating greater risk to their health. The women claim that abortion restrictions interfere with the most intimate aspects of their private and family lives and thus a violation with the European Convention on Human Rights, which provides a right to respect for one's "private and family life." In addition, the women also claim the abortion laws impeded the ability of some of them to obtain necessary follow-up medical care upon their return to Ireland and there would be also a lack of any effective remedy at home. Taking the case to the Irish courts would have been costly, futile and could have forced them to relinquish their anonymity. The women's complaints are based on four alleged violations of articles in the European Convention on Human Rights.

Firstly, the women argue that their human rights are being violated because Ireland's abortion ban violates their right to privacy in all family, home and personal interests, and their entitlement to no public interference from any public authority in exercising this right (article 8).

Secondly, the ban violates their right to be free from inhumane and degrading treatment (article 3) because women seeking abortions are stigmatized and suffer increased feelings of guilt, as well as difficulty securing follow-up care.

Thirdly, the ban breaches their right to life (article 2) because the Irish government has not provided any clear legislation about when abortion may be legally carried out under the exception reserved for saving the mother's life.

And finally, the Irish abortion law discriminates on the basis of sex and financial status (article 14). Thus, the plaintiffs argue that forced travel and childbirth, endangerment of pregnant women's lives and discrimination based on sex and financial status violate their rights.

Ireland (both Northern Ireland and the Republic) has an exceptionally restrictive law on abortion, which allows abortion only when the life of the woman is in danger. In practice, however, abortion is unavailable in Ireland in almost all circumstances due to ambiguity about when a physician may legally perform a life-saving operation. The law also fails to make any provision for a woman who become pregnant as a result of rape or incest, experiencing severe fetal abnormality or at risk of permanent bodily harm such as blindness, diabetes, kidney or heart disease. Official figures show that over 7,000 women travel each year to England for abortions from Ireland. This figure is based upon the number of women providing Irish addresses (from the Republic and Northern Ireland) and vastly undercounts the actual number of women travelling, some of whom may give false addresses in England or travel to other countries like Belgium and the Netherlands.

In April 2009, the Irish government filed its legal papers. The main plank of the government’s defence rests on its contention that domestic legal remedies in Ireland have not been exhausted by the plaintiffs. It also robustly challenges suggestions made by the plaintiffs that there is a lack of post-abortion care or counselling in Ireland. As a result, government attorneys say they should not have brought the case to the court, which covers the 42 members of the Council of Europe. The Irish government also insists the European Convention on Human Rights, on which the court operates, does not confer a right to abortion and the member states of the Council have never voted for the convention to authorize such a right.

The Court will hold the hearing in the case on 9 December 2009.

The case will be watched closely by observers. In 2007 the same court gave a ruling in a Polish abortion case which resulted in Poland being instructed to guarantee access to legal abortions.