From Issue 84 May 2012
In anticipation of the report a Private Members’ Bill that sought to create a legal framework for abortion where a woman’s life is at risk. This development is the most recent in a succession of attempts to implement legislation clarifying the law on abortion. Over the past two decades this issue has been at the forefront of the political agenda, surfacing following the decision of the Supreme Court in the infamous X case. The majority in this case held that a woman had a right to an abortion under Article 40.3.3 of the Constitution if there was a “real and substantial risk” to her life including, and most controversially, the risk of suicide.
While the inclusion of the risk of suicide as a justification for abortion remains a contentious issue, it is not technically a matter of dispute in constitutional or legal terms. Subsequent to the X case, two referendums, in 1992 and 2002, were held offering the people an opportunity to overrule this decision and narrow the constitutional allowance by removing the threat of suicide as a justification for abortion. In both instances the proposals were rejected. Accordingly, in the absence of constitutional change the right is settled and unimpeachable.
Nonetheless, the law still requires clarification and a comprehensive legal framework that sets out the circumstances in which abortion can be performed. This was confirmed in the Constitution Review Group Report 1996 which considered the substantive law on abortion in Ireland to be unclear and stated that definition was required.
Issues and clarification
One of the foremost criticisms of the current legislation is the disparity 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. Under the present system medical professionals are reluctant to perform abortions in any circumstances due to the high risk of prosecution if the decision is wrongly made. The European Court of Human Rights noted that the potential for a criminal prosecution under the current legislation would constitute “a significant chilling factor for both women and doctors in the medical consultation process”. Others have commented on the disproportionate and excessive nature of the law given the fact that a woman can freely travel outside the jurisdiction to procure an abortion in any circumstances. The high number of Irish women traveling abroad to avail of legalised abortion services creates problems in its own right. A study conducted by the Crisis Pregnancy Agency in 2006 found that as a result of having to make arrangements and travel abroad, Irish women have a higher rate of later abortions, and receive less pre-abortion and follow-up medical care necessary to preserve their health and well-being.
Furthermore, there are a number of other issues that have not been addressed in any form by Irish law including whether limited viability outside the womb can justify the termination of pregnancy and whether any consideration is given to a father’s rights in determining a woman’s right to travel for an abortion.
European Court of Human Rights
Unsurprisingly, the lacuna in the Irish law on abortion has been the subject of considerable international comment and criticism. Most notably in the recent A, B and Cv Ireland case which came before the European Court of Human Rights (ECtHR) in December 2010. In this case, the ECtHR found that the Irish State had failed to implement existing rights to a lawful abortion where a mother’s life is at risk. This breached the right to respect for private life under Article 8 of the Convention “by reason of the absence of any implementing legislative or regulatory regime providing an accessible and effective procedure by which the third applicant could have established whether she qualified for a lawful abortion in Ireland in accordance with the Constitution.”
Accordingly, Ireland is now under an obligation to implement the existing constitutional right to lawful abortion and introduce legislation that determines how the right to life of the unborn and the equal right to life of the mother are to be reconciled. In response to this, the present Government established an expert group, chaired by Mr. Justice Sean Ryan and consisting of thirteen members, to examine the ruling of the ECtHR and to make recommendations as to the implementation of the judgment.
While the need for clear guidelines on the legality of abortion has been widely accepted, it remains a controversial issue. Some pro-life campaign groups have concerns that introducing legislation will open the door to an “abortion on demand regime”. While this is a valid concern, the current ambiguity around the law of abortion and the culture of travelling to procure abortions is less than satisfactory. The expert group is expected to address these issues in its report which will be published in July of this year.
Jennifer Coyne is a Public Affairs Executive and has a B.A. and LL.B from the National University of Ireland, Galway.