When Socialist Party representative Clare Daly stood up in the Irish parliament last week to propose a motion that would legalize abortion in Ireland, there was little reaction. No one seriously expects the legislation to proceed, and when it comes to a vote on April 19 the government is expected to use its majority in parliament to crush the motion. So far only six of 166 legislators have promised they will support the move. But that won’t signal the end of the latest attempt to overturn the country’s ban on abortion. Ireland, Malta, and Cyprus remain the only countries in Europe where abortion is illegal.
Pro-life activists have accused the bill’s supporters of muddying the waters by creating the false impression that are circumstances in which a direct abortion is necessary to save the life of a pregnant woman. The preamble to the proposed legislation states that the plan is “to provide for termination of pregnancy where a real and substantial risk to the life of the pregnant woman exists; to make provision for the prevention of any curtailment, hindrance, or preclusion of such treatment that may arise as a result of the pregnancy of the woman; and to provide for related matters.”
However, Dr. Ruth Cullen, a spokeswoman for the Pro-Life Campaign, insists that this description “falsely creates the impression that women in Ireland are being denied necessary medical treatments in pregnancy because of the absence of abortion here.”
“The reality is that Ireland ranks as one of the safest countries in the world for pregnant women, safer than places like Britain or Holland where abortion is available on demand,” said Dr. Cullen.
Obstetricians can be justifiably proud of Ireland’s record on maternal mortality. When six countries (Holland, Germany, Denmark, Slovenia, Norway, and Spain) led a campaign at the United Nations to force Ireland to introduce abortion last year, Caroline Simons—a Dublin-based lawyer—was quick to point out that Ireland has “a much better record of safeguarding the lives of women in pregnancy than any of the six countries that challenged our laws on abortion.”
The latest UN study on maternal mortality, published in 2010, shows that out of 172 countries for which estimates are given, Ireland remains a world leader in safety for pregnant women.
The current debate on abortion has been precipitated by the government’s recent decision to appoint an “expert group” on abortion to advise on the implementation of a 2010 ruling of the European Court of Human Rights (ECHR), which requires Ireland to clarify the legal status of abortion in the country.
The court rejected the cases of two women who claimed their rights were violated by Ireland’s anti-abortion laws. However, the court also ruled that a third woman’s human rights were violated by the lack of legal procedures for ascertaining whether or not she qualified for a constitutionally-protected abortion.
The ECHR affirmed that states have the right to ban abortion, and did not establish a universal “right to abortion”—two judgments welcomed by pro-life activists and Church leaders.
While abortion has always been illegal in Ireland, a 1983 amendment to the country’s constitution recognizes the right to life of the unborn, and provides for the protection of the unborn child “with due regard to the equal right to life of the mother.”
The ECHR’s decision relied in large part on the Supreme Court’s 1992 “X” case judgment. The case involved a 14-year-old girl who had become pregnant as a result of rape. The girl’s claim to be experiencing suicidal thoughts because of the unwanted pregnancy led the court to rule that the girl had the right to an abortion in Ireland because there was “a real and substantial risk” to her life.
Since that ruling successive governments keen to maintain their pro-life policies have refused to pass legislation regulating abortion in such cases. Similarly, in a number of referenda on the issue, a majority of voters have refused to support direct abortion in any circumstances.
A 2002 attempt to overturn the Supreme Court decision by referendum narrowly failed after pro-life voters were split on whether the proposal went far enough. While the Catholic Church and mainstream pro-life activists backed that move, other pro-lifers worried that extending legal protection from implantation rather than conception could open the door to embryonic research.
The ECHR—a Strasbourg-based body overseen by the 47-member-state Council of Europe (not to be confused with the smaller, 27-member-state European Union)—considered the cases of three Irish women who insisted their human rights were violated because they had to travel to neighboring Britain to obtain abortions. The three women were among an estimated 4,000 Irish women who travel to Britain for abortions each year.
The crux of the case was the women’s argument that their abortions were necessary and thus protected under the Irish constitution. “Miss A” was a drug addict and alcoholic living in poverty when she became unintentionally pregnant. She believed she should have been allowed to have an abortion under the provisions of the Irish constitution. Pro-lifers in Ireland breathed a sigh of relief as the ECHR rejected her claim utterly. Had the court backed her case, it would have effectively been an endorsement of abortion on demand.
“Miss B,” who claimed she risked an ectopic pregnancy had she carried her pregnancy to term, also had her case rejected by the court, which found that there was not enough medical evidence to support her claim that an ectopic pregnancy was a certainty.
In the case of “Miss C,” the woman involved was in remission from a rare form of cancer and feared it would return once she became unintentionally pregnant. However, the woman was unable to find a doctor willing to make a determination as to whether her life would be at risk if she continued her pregnancy to term, making it impossible for her to obtain an abortion in Ireland.
The ECHR unanimously ruled that “C’s” human rights had been breached, because, while the Irish Supreme Court ruled that the country’s constitution allows for abortion in life-threatening situations, no legal procedures for establishing whether or not a pregnancy is life-threatening exist.
The court concluded that neither the “medical consultation nor litigation options” provided by the Irish government constituted an effective or accessible procedure. “Moreover, there was no explanation why the existing constitutional right had not been implemented to date,” the court ruled.
The court also determined that member states of the Council of Europe are entitled to have laws banning abortion. But the ECHR did state that countries are not entitled to have court-established rights for which no legislation exists.
As a signatory to the European Convention of Human Rights convention—which is now incorporated into Irish law—the Irish government is obliged to remedy any breaches of the convention. However, the ECHR has no power to penalize Ireland for any violations, or to impose any changes to Irish law.
The Irish government has defended its laws, saying that they were based on “profound moral values deeply embedded in Irish society.”
The establishment of the expert group to advise the government on how to respond masks a deeper political split in the coalition government. Before last year’s general election, the left-wing Labor Party promised to legislate for abortion. However, center-right Fine Gael leader—and now Prime Minister—Enda Kenny signed a pre-election pledge that he would not legislate for abortion. With Fine Gael holding 74 seats and Labor just 35, the majority view looks likely to prevail, at least for now.
However, pro-life activists are not resting on their laurels. Caroline Simons points out that “contrary to what pro-choice groups claim, Ireland is not obliged to legislate for abortion following on from the recent European Court of Human Rights ruling.”
“It would also be grossly irresponsible to do so, given the sheer volume of published peer reviewed studies, highlighting the negative consequences of abortion for women,” she insists.
Professor William Binchy, a constitutional lawyer at Dublin’s Trinity College, agrees. He believes that “the task for the expert group is to recommend legal support for doctors to continue to uphold the principle of doing the best possible for two patients—mother and child—during pregnancy.”
Binchy believes the 1992 Supreme Court needs to overturned. “The mistake that the Supreme Court made in the ‘X’ case was to embrace a quite different principle: that it is permissible to target the unborn child and intentionally terminate his or her life,” he said.
“The Supreme Court heard no expert psychiatric evidence. Over the 20 years since the X case, the international research has shown a different reality: studies have been published that identify abortion as involving a significant increase in suicidal ideation and outcome,” Binchy insists.
He hopes “that the expert group will take a broad view of its mandate and will guide the government on the range of social supports that parents need in the awesome challenges that they may face in rearing the children who depend on their care.”
The country’s most senior Churchman, Cardinal SeÁn Brady of Armagh, said the expert group must recognize that the ECHR “judgment leaves future policy in Ireland on protecting the lives of unborn children in the hands of the Irish people, and does not oblige Ireland to introduce legislation authorizing abortion.”
In the event of a referendum on whether or not to introduce abortion, opinion polls appear heartening for the pro-life cause. A November 2011 poll revealed that more than two-thirds of Irish people want to see the unborn child’s right to life protected in law. Respondents were asked: “Are you in favor or opposed to constitutional protection for the unborn that prohibits abortion but allows the continuation of the existing practice of intervention to save a mother’s life, in accordance with Irish medical ethics?” Sixty-one percent favored constitutional protection for the unborn child, with 17 percent opposed. When the 22 percent who expressed no view are excluded, 78 percent of Irish people favor legal protection for the unborn, while 22 percent oppose.