Ireland’s constitutional ban on abortion violates the rights of pregnant women to receive proper medical care in life-threatening cases, the European Court of Human Rights ruled Thursday, harshly criticizing Ireland’s long inaction on the issue.
The judgment from the Strasbourg, France-based court backed the right of a woman fighting cancer to receive an abortion in Ireland. It will put Ireland under pressure to draft a law extending limited abortion rights to women whose pregnancies represent a potentially fatal threat to their own health.
Ireland has resisted doing that despite a 1992 judgment from the Irish Supreme Court that said abortions should be legalized in Ireland in all cases where the woman’s life is endangered by continued pregnancy — including by a woman’s threats to commit suicide.
The 18-year delay has left the abortion rights of thousands of women in legal limbo, obliging many to travel overseas for the procedure rather than rely on Irish doctors fearful of being prosecuted.
In an 11-6 verdict, the 17 Strasbourg judges said Ireland was wrong to keep the legal situation unclear and said the Irish government had offered no credible explanation for its failure. The Irish judge on the panel, Mary Finlay Geoghegan, sided with that majority view.
“(Ireland’s failure) 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,” the judges wrote.
Under Irish law dating back to 1861, a doctor and woman both could be prosecuted for murder if an abortion was later deemed not to be medically necessary.
The court said this law “constituted a significant chilling factor for women and doctors as they both ran a risk of a serious criminal conviction and imprisonment.”
The Strasbourg court broadly upheld Ireland’s right to outlaw abortion in the overwhelming majority of cases because that law reflects “the profound moral values of the Irish people in respect of the right to life of the unborn.”
But it found Ireland guilty of violating one woman’s right.
The lawsuit dates back to 2005, when the Irish Family Planning Association took Ireland’s government to court on behalf of three women who had to travel overseas that year for abortions: an Irish woman who had four previous children placed in state care, an Irish woman who didn’t want to become a single mother, and a Lithuanian woman living in Ireland who was in remission from cancer.
The judges said the first two women had failed to demonstrate that their pregnancies represented a sufficient risk to their health, but the Lithuanian woman had her right to life threatened. It ordered Ireland to pay her euro15,000 ($20,000) in damages.
The judges lambasted Ireland’s defense claiming that the woman should have petitioned the Irish High Court for the right to have an abortion in Ireland. They said Irish doctors must be given clear legal guidance on the rules for deeming women eligible for abortions.
The Irish government said its attorney general, Health Minister Mary Harney and Justice Minister Dermot Ahern were studying the judgment but had no immediate comment.
European Court of Human Rights judgments are legally binding but difficult to enforce. Members of the 47-nation Council of Europe often take years to respond to court judgments with the legal reforms ordered. An offending nation that refuses to observe a court order could be expelled from the Council of Europe as punishment, but this has never happened.
The Irish Family Planning Association and an Irish lobbying group, Doctors for Choice, welcomed the verdict.
“(It) leaves no option available to the Irish state other than to legislate for abortion services in cases where a woman’s life is at risk,” said Niall Behan, head of the association.
“Doctors can feel vindicated today. For the first time we can feel confident about discussing abortion as an option for women in medical need without fearing prosecution,” said Dr. Mary Favier, director of Doctors for Choice.
In the 1992 case, a pregnant 14-year-old girl who had been raped by a neighbor successfully sued the government to permit her to travel to England for an abortion. The government tried to stop her, arguing it could not facilitate an illegal act, even though she was threatening to commit suicide.
The Irish Supreme Court ruled that traveling to obtain abortions abroad was legal, and Ireland itself should provide abortions in cases where a continued pregnancy would threaten the life of the woman. Ireland in 1992 passed a law permitting women the right to travel abroad for abortions.
(Published by LA Times – December 16, 2010)