Ireland, a deeply Catholic country, is the only remaining Member State of the European Union that only allows abortions if there is a substantial risk to the life of the mother. In 1983, Ireland amended its constitution to include a “Pro-Life Amendment,” which asserts that the unborn child has an explicit right to life from the moment of conception. As a result, under the current law, it is unlawful to have an abortion in Ireland even if the woman’s health is at risk, the pregnancy is the result of rape or incest, the fetus would not survive outside of the womb, or the continuation of the pregnancy would not be in the best interest of the mother. In contrast, 44 of the 47 Council of Europe Member States allow abortions in the majority of circumstances, especially to save the mother’s life or where the pregnancy is the result of incest or rape.
In many cases, Irish women seeking abortions travel to other European countries to have the procedure. From 1980 to 2008, 137,618 Irish women traveled to the UK to have an abortion. However, the Republic of Ireland has started to use injunctions to prevent women from traveling abroad for abortions. According to Human Rights Watch, a 17-year-old girl in the custody of a Health Services Executive had to go to court to get permission to travel to the UK for an abortion. The government also places restrictions on when and how organizations can provide information regarding access to abortion services abroad. Moreover, due to unclear legal and policy guidelines about legal abortions, even women who may qualify for legal abortions in Ireland cannot obtain them for fear of severe penalties, which may include penal servitude for life for both patients and service providers. As a result, some doctors are reluctant to provide pre-natal screening for severe fetal abnormalities, and very few women have access to domestic legal abortions.
The international legal community has taken notice. Last year, the UN Human Rights Committee criticized Ireland’s laws on abortion in their UPR and recommended that the country harmonize its domestic litigation with the ICCPR. On December 9, 2009, the Grand Chamber of the European Court of Human Rights (ECtHR) heard ABC v. Ireland, the first case in the ECtHR to challenge Ireland’s anti-abortion laws in more than 15 years. The case involves three women who are challenging the ban on grounds that it forces women to travel abroad to procure abortions, jeopardizing their health and well-being in violation of their rights under the European Convention on Human Rights (ECHR). The specific ECHR provisions cited are Article 2, the right to life; Article 3, the prohibition of torture; Article 8, the right to respect for family and private life; and Article 14, the prohibition of discrimination. Pro-choice advocacy groups argue that ABC v. Ireland has a better chance for success than its predecessor, D v. Ireland, because it directly challenges Ireland’s general prohibition on abortion rather than make an inroad through a particular exception. In D v. Ireland, a pregnant woman challenged the lack of abortion services in Ireland in the case of a lethal fetal abnormality.
This case has significant consequences for both Ireland and the entire European community. As suggested by Johanna Higgins, co-founder of the Association of Catholic Lawyers of Ireland, a ruling in favor of the three women might signal to EU Member States that they are no longer free to make decisions concerning their own domestic law, which is often rooted in unique historical, religious, and cultural principles.