Ireland’s abortion laws CONOR GEARTY


Double standards in Dublin


Ireland’s constitution allows a woman to have an abortion in the country if her life is at risk from continuing the pregnancy. Following a recent European court ruling, the Dublin Government will have to enshrine this right in law


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ast month’s decision by the European Court of Human Rights on Ireland’s abortion law, or more accurately the absence of such a law, is more about hypocrisy and double standards than it is about the Irish state’s attitude to abortion. There were three applicants in the case. The first two argued that for reasons related to their health and/or well-being, they needed to terminate their pregnancies in Ireland (rather than by travelling abroad). They pro- posed that the mainly Victorian laws preventing them from doing this should be


declared a breach of their right to privacy under the European Convention on Human Rights (Article 8). The facts in these cases were severe but the Strasbourg court remained unmoved, ruling against both of them. The judges, by a vote of 11-6, were kind to the state, acknowledging that there had to be a balance between the rights of the women concerned and the “profound moral values of the Irish people as to the nature of life and consequently as to the need to protect the life of the unborn”. Ireland’s freedom of ethical manoeuvre was not trumped by the fact that


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most of Europe now took a different, more liberal line. The women were specifically guar- anteed constitutional rights to information and travel if they wanted to terminate abroad, an “Irish solution to an Irish problem” as the court did not say but might collectively have been thinking. The risk faced by the third applicant was to her life: she had a rare form of cancer which she believed would be more likely to return if she remained pregnant and for which – were the disease to return – she believed she would be unable to obtain treatment in Ireland (on account of her pregnancy). The court was unanimous that on these facts Article 8 had been breached. But why treat this applicant (“C”) differently from the other two (“A” and “B”)? What had happened to the “profound moral values” that had determined the first two cases? The answer lies in a famous Irish case of nearly 19 years ago: X v. Attorney General. Here a young girl who had been raped and become pregnant was briefly injuncted from leaving the state by the then Attorney General, who believed that were she to cross the Irish Sea she would terminate her pregnancy in England. This would have infringed the guar- antee of the right to life of the unborn which had been voted into the Irish constitution in a referendum in 1983. The Attorney thought he was taking the


Irish people at their word but there was a furious response against his action. No one seemed to want their “profound moral values” to be this profound. Under pressure and in haste, the Supreme Court in Dublin reinter- preted the constitutional amendment – which had always included a reference to the equal right to life of the mother – to permit abortion within the state where there was a “substantial risk to the life, as distinct from the health, of the mother, which [could] only be avoided by the termination of her pregnancy”. Such a threat could be from suicide (as in the Xcase) as well as from complications in the pregnancy. Late in 1992, and in response to this case,


two further referenda added to the constitu- tion the guarantees of rights to travel and to information which were pivotal in the 2010 Strasbourg findings against A and B. But the original amendment which had caused all


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