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European court rules that Ireland’s abortion laws breach human rights

By on Thursday, 16 December 2010

The European Court of Human Rights has ruled that Ireland’s laws banning abortion breach European human rights law.

In a landmark and binding case that could have implications for other European countries, the court ruled that Ireland had breached the human rights of a woman with a rare form of cancer who feared it would relapse if she became unintentionally pregnant.

But the woman was unable to find a doctor willing to judge whether her life would be at risk if she continued her pregnancy to term.

The court concluded today that neither the “medical consultation nor litigation options” relied on by the government constituted an effective or accessible procedure.

“Moreover, there was no explanation why the existing constitution right had not been implemented to date,” the court ruled.

While abortion remains a criminal offence under 1861 legislation, a technical constitutional right to abortion does exist in Ireland following a 1992 Supreme Court ruling. In a controversial judgment known as the “X case”, the court established the right of Irish women to an abortion if a pregnant woman’s life was at risk as a result of the pregnancy.

However, successive governments have not legislated on the issue, and several constitutional referenda variously aimed at either enacting or revoking the judgment have proved inconclusive.

Guidelines from the Irish Medical Council describe abortion as “professional misconduct”.

The European court case was filed in 2005. In 2009 it had an oral hearing before the court’s grand chamber. This 17-judge court is reserved to hear cases that raise serious questions affecting the interpretation of the European Convention of Human Rights. As a signatory to the European Convention on Human Rights – now incorporated into Irish law – the government is obliged to remedy any breaches of the convention.

Ireland and Malta are the only member-states of the Council of Europe in which abortion remains illegal.

Two other Irish women who took cases before the court in Strasbourg, France, were unsuccessful in their bids. The first woman, who was claiming the right to an abortion because she was living in poverty and felt unable to raise the child, had her case struck down. Her case, if successful, would have forced Ireland to legislate for abortion on demand.

The second of the two unsuccessful candidates ran the risk of an ectopic pregnancy, in which the foetus develops outside of the womb. Her case also was rejected because there was no clear medical certainty over the diagnosis of an ectopic pregnancy.

All three women were among an estimated 4,000 Irish women who travel to neighbouring Britain for an abortion each year.

The Irish government defended its laws and said Ireland’s abortion laws were based on “profound moral values deeply embedded in Irish society”.

It argued that the European Court of Human Rights has consistently recognised the traditions of different countries regarding the rights of unborn children. However, it maintained that the women’s challenge sought to undermine these principles and align Ireland with countries with more liberal abortion laws.

Government spokesmen were initially unwilling to comment on whether the state would appeal the decision.

Independent Senator Ronan Mullen called on the government to hold a referendum to overturn the 1992 Supreme Court decision.

“The only reason the ECHR made this judgment is because the Supreme Court made its flawed interpretation of the [Irish] constitution. We now need to have a referendum that will restore the full legal and constitutional protection for the unborn that was undermined by the Supreme Court,” Mr Mullen told the American Catholic News Service.

William Binchy, a constitutional lawyer and legal adviser to the Pro-Life Campaign, said: “The most important [thing] is that the judgment does not require Ireland to introduce legislation authorising abortion. On the contrary, it fully respects the entitlement of the Irish people to determine legal policy on protecting the lives of unborn children.

“The Irish people must now make a choice. If they were to choose to endorse the Supreme Court decision in X, this would involve legalising abortion contrary to existing medical practice and the best evidence of medical research. If, on the other hand, the Irish people choose to endorse the current medical practice, they will be ensuring the continuation of Ireland’s world-renowned safety record for mothers and babies during pregnancy,” Mr Binchy said.

The ruling is set to put the issue of abortion back on the political agenda as the country prepares for a general election early in 2011. Both main parties – the current governing Fianna Fail party and the main opposition Fine Gael – have policies opposed to abortion. Only the minority Labour Party supports the introduction of abortion.

The issue has emerged over the years as a lightning rod in Irish politics, with most politicians unwilling to touch the issue. Opinion polls consistently show that the majority of Irish people are opposed to the introduction of laws permitting abortion.

A poll in February of this year, for example, asked respondents: “Are you in favour of 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?”

The finding showed that 70 per cent supported constitutional protection for the unborn, 13 per cent oppose it and 16 percent did not know or had no opinion.

  • Ratbag

    I hope and pray Ireland will stand up to these Euro bullies and not cave in on this important issue. A matter of life and death… for the baby! Any baby! If Ireland thinks it's situation is bad now, once abortion becomes the norm there – God help Ireland!

  • Ratbag

    sorry for the mistake – it should rate 'its' not 'its' .

  • Ignasi Pau

    Sad news, Jesuschrist have mercy on us!

  • Frankanthonymitchell

    An abortionist is someone who thinks it’s OK for a woman to have her child killed as long as it’s too young to notice….

  • paulsays

    Banning abortion does not stop it. That's like saying that banning drug stops the problem.
    With practices like abortion that cannot effectively be stopped by the government, that will inevitably take place anyway – except in a back-alley; all illegality achieves is to give a official moral pronouncement.

    I figure rather than the vain pronouncement which achieves nothing but to put people's minds to rest that will never have to deal with an unwanted pregnancy themselves; it is better to go about reducing the number of abortions that will occur anyway by trying to reduce teenage pregnancy rates in the first place.

  • paulsays

    embryo – fetus – developing fetus – baby

    Different stages that occur through the 9 month period of pregnancy. It does not start off as a child. If your argument is to save every fetus and embryo then so be it, please express yourself this in this respect. The joining of a sperm and an egg certainly does not produce a child.

    Deluding yourself that this is a black and white issue is very comfortable, (I know as I once did), but it is ignorant to do so. The progression from cell to baby is progressive and not instant and knowing were to draw the line is a very difficult, is not impossible decision.

    Do you believe that a clump of cells hanging onto the blood-engorged wall of the Mother's womb has a soul? It is 'life' only in the sense that it is 'alive', in the same way algae is alive or that a fruit fly is alive. Under most peoples morals not wrong to kill at this point.

  • Joel Pinheiro

    Abortion is a terrible crime. Just like killing an adult male. Once we accept the unborn fetus is a human being (and there is no reason to deny it, as it is already a living individual organism of the homo sapiens sapiens species) all defenses of abortion fall to ground. Even if, say, the mother was raped and the baby is handicapped, that doesn't give us the right to kill it.

    However, sometimes killing is justified, as in self-defense. No-one is forced to give up his life. Someone might say that the grown attacker is not innocent as the baby. Generally speaking, that is true, but what if the attacker is a completely mad man, who is, morally speaking, as innocent as a young child, having never achieved the use of reason? The right of self-defense, which includes lethal force if necessary, is valid even if the aggressor is morally innocent of the attack.

    So, what is the argument for prohibiting abortion when not aborting would mean the probable death of the mother (remember that when a criminal attacks us, death is also only a probable, and never a certain, outcome of his actions; and yet lethal force may be used against him if necessary)? This is a question in which the emotionalism of pro-life discourse must cool it a little bit and think seriously.

    A mother who chooses death so that her child can live makes a heroic choice. The law, however, must be concerned with implementing mere justice; and it doesn't seem to be an unjust action to abort the fetus in order to save the mother whom the baby's growth and birth might kill. We can't be forced by law to be heroes; the government's job is ensuring that we act with basic justice.

  • Joel Pinheiro

    You may be right… “under most peoples morals”. But the mere fact it is most people's doesn't mean it is right.

    What is the difference between a still young fetus and a grown baby that makes it wrong to kill the latter and ok to kill the former? Be careful; depending on the criterium you choose, you'll be morally allowing the killing of people in many other stages of life beside the unborn.

    I say that, if the unborn baby threatens seriously the life of the mother, it is not wrong to kill it if that is the only way to save her life. Regardless of age and stage of pregnancy. Lethal self-defense is justified against people of all ages (provided lethal force is the only probable way to stop the attacker, who may or may not be aware of what he is doing).

  • Toby

    Your use of stages is absolutely correct. What you don't say, because it would be incorrect, is that what that being is, that you label embryo – fetus – developing fetus – baby, substantially changes. Yes it develops and changes, just as we do outside the womb, but it does not become a different species. To use terminology that suggests that the baby in the womb is other than human is just to try and make a barbaric practice appear less so.

    The child in the womb is a human being with potential; not a potential human being.

    The clump of cells line gets very boring. Is any living being, in a materialist sense, more than just a clump of cells at any stage of development?

    You also make the mistake of assuming the moral consensus to constitute the moral reality. Not so, just because 99% of peope share the same deluded idea, borne out of convenience and, in general, a wish to be able to sleep around with no regard to the consequences, does not make it right. And in fact in Ireland there is a substantial majority opinion against abortion; so your argument fails there on both fronts.

    Perhaps you would like to suggest at what point we become human and when we get a soul. Did the baby born prematurely not have one, but the baby borne full term had got one by that stage. Does the clump of cells hanging onto the milk-engorged breast for sustenance have a soul?

    When did you personally get your soul? Up to what stage would it have been legitimate to kill you?

    The one thing all people in favour of abortion have in common is that they were never aborted themselves.

  • Karmenu of Malta

    At no stage of development of modern civilisation has the human being been more irrational than in the declaration that the murder of an unborn human is a human right.

  • Bwaj

    The European Court did not say Ireland was violating the European Convention on Human Rights by declaring abortion illegal and protecting the lives of unborn children. Please read: 'European Court: No Right to Abort: Upholds Irish Constitution on Prohibiting Abortion' (Zenit: 16 December 2010)

  • Diffal

    The Judgement itself states that “While Article 8 [of the ECHR] cannot, accordingly, be interpreted as conferring a right to abortion..” and then goes on to mention private life.

    I am also very dubious about this so called constitutional right to abortion under Irish Law, no such “constitutional right” exists. The Irish constitution is a written document and article 40.3 3° states:
    “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.”

    What ever the X-case may have left us it it NOT a constitutional right to abortion

  • veracity

    Can the unborn child feel pain? Yes.

  • veracity

    I agree with you Joel. People will always try to find a reason to abort because they want to be promiscuous more than they value vulnerable unborn children.

  • paulsays

    Most medical evidence suggests that the fetus is incapable of feeling pain until the 24th week at the earliest.
    The limit in Britain for abortion is 24 weeks in the case of metal or physical damage to the mother, therefore fetal pain is not an issue really. I also believe in some cases that fetal anesthetics have been used before.

    If you refer to the fetus as a child or a baby from the moment of conception onwards, your sub-conscience is likely to apply the Characteristics of a child to the fetus when this may not be the case.
    Just because it may feel like it is true does not mean it is, it is important we all question our preconceptions, so we are working with the right knowledge.

    Just so everyone knows, I support abortion until around 18/20th week, earlier then our present limit. I do not take an extremist position. Neither the 'child at conception' Catholic view, nor the 'Child only after born' view of more extreme pro-choicers.

  • stephen anderson

    i quite agree! i really like that quote. i think i'll use that in future when i come up against little antichrists we call abortionists!

  • June Mary Herridge

    Women with unwanted pregnancies must ask themselves what would Jesus do.

  • Toby

    How can you take the risk in your hazy view of when the embryo becomes a human of having an abortion of killing a human because your estimate of when it became a person was not quite right? What if it's 16 weeks not 18? Big risk to take . . . or does it not matter because they can't complain about it?

    If I were to anaethetise a sentient human and then kill him; would that be ok under your moral framework?

  • louella

    Banning abortion does work. It worked brilliantly in Poland! Abortion is a disgusting depravity and a sign of a degenerate uncivilised society.

    Thank God such societies are always wiped out.

  • Eric Conway

    Yet again, more ridiculous mumbo-jumbo from Europe. Beyond parody. It's official – abortion is now a cure for cancer !. If these French based legal-eagles are so concerned about wimmins health, they might look closer to home. Ireland has excellent maternity hospitals, in which both patients ( mother & child ) are cared for. Ireland has a much lower maternal mortality rate than France. So our Strasbourg based legalistas should get their own house in order, before attempting to bully the Irish medical profession !.

  • Deesis

    When a a clump of developing cells is deliberately destroyed so as to prevent the development/ birth of a baby, teenager, adult, elderly person, parent, grand parent on and on the point remains it was done DELIBERATELY to kill another/ prevent a fellow human having life. It is murder.

  • Deesis

    The EU is a trading block. It should not be a political union. The actions of the European Court of Human Rights shows as happened in Soviet Russia and Germany before the war, how the judiciary can be highjacked and manipulated by twisted ideology. Modernity that presents new occasions for evil.

  • Anonymous

    nobody is questioning other medical statistics such as France’s infant mortality rate. Why create straw-man arguments. The issue here is abortion, and the obvious fact that legal abortions are much safer than coat-hangers that otherwise would and are used by young girls caught in what we would all agree is a dreadful situation.
    On a side note I resent your slamming of the French healthcare system – as you will find in all other measurable statistics the better funded French system is somewhat superior to our beloved NHS. They pay more and they get more in return. The likely hood for the anomaly in the maternal mortality rate is due to the fact that many more French women choose to, and have the opportunity to give birth at home, which increases risk to some degree and explains the difference between the systems on this measure

  • Anonymous

    granted, in some cases people use abortion as a form of late contraception, which I see as irresponsible. If you object yourself to this also, you must see that the Church’s position on contraception is in directly contradictory in its teaching on abortion, responsible usage of contraception leads to reduced abortions. Remember no woman actually WANTS to have an abortion, it is a highly traumatic and and painful experience.
    I would also like you to take into account the victim of rape; the recent case of the pregnant 10 year old Mexican girl (and those of a similar age, too young to understand the implications, or understand the sex act itself), those who take all possible precautions but are unlucky with the failure of contraception; the distraught teenage girl who has made a terrible mistake and doesn’t want a family, or in the cases of families that cannot afford to bring a child up. Please don’t stereotype those who get abortions as lazy, rich and irresponsible. It is usually the very most vulnerable that seek these services.

  • Anonymous

    ‘human having life’ is the key phrase. This is a good and logical argument of prospective future life.
    It is one that I do not give much credence to in that many human embryo’s are conceived – and fail, many more than are actually born. God obviously doesn’t care to much about embryos if this is what he allows to happen. It is though a fair point, and as far as i know the point shared by the famous atheist Peter Hitchens to whom I respect in his intelligence.
    However, it is the case that you are not speaking the Church’s position, the Church’s position is that at conception what has been created is a human already, not in the making. Although seemingly insignificant this is a major point of difference between your argument and that of the Church’s.

  • Anonymous

    Jesus didn’t have a womb so probably wasn’t in the position to comment. He probably would have advised a consultation at planned-parenthood

  • Anonymous

    The origins of the EU where a trading block. The EEC, or European Economic Community, the predecessor of the EU was exactly that. The EU is now obviously a political body also, this happened under governments which the British public voted in at the ballot box, therefore the nation as a whole had its say. As it stands we have some exceptions to some European directives which were felt would not be popular.
    Your view is obviously valid, but the institution of the EU has moved on, and the majority of the British public agree with the status quo.