A long-awaited decision by the European Court of Human Rights regarding abortion rights in Ireland evinced claims of victory from both sides of the debate, but plenty of questions still remain regarding implementation of the decision. On Dec. 16, 2010, the Grand Chamber ruled that Ireland breached the right to private and family life (Article Eight) of a woman whose access to legal abortion in Ireland was infringed upon by the government. The Court found no violation, however, with respect to the other two applicants in the case – A, B, and C v. Ireland.
Critics of Ireland’s strict abortion laws instantly lauded the decision as a crack in the established policies. Anti-abortion proponents countered that the Court’s judgment does nothing more than reinforce laws already in Ireland’s constitution. The true effect on Ireland’s abortion laws – considered some of the strictest among States Parties to the European Convention on Human Rights – likely lies somewhere in the middle.
Currently, abortion in Ireland is only legal when a woman’s life is at stake due to pregnancy. As such, thousands of women travel from Ireland to England and Wales each year seeking legal abortions. The applicants to the complaint – two Irish nationals and one Lithuanian – all traveled to the United Kingdom in 2005 for abortions. The first applicant, a poor, unmarried, and unemployed woman living in poverty, chose to have an abortion to avoid “jeopardizing her chances of reuniting her family.” The second applicant chose to have an abortion because she did not want to become a single parent. The third applicant, from Lithuania, was in remission from cancer and chose an abortion out of fear the cancer would return. As reported in the Court’s press release, “[t]he third applicant submitted that, although she believed her pregnancy put her life at risk, there was no law or procedure through which she could have that, and – as a result – her right to an abortion in Ireland, established.”
Essentially, as New York Times reporter and Yale Law School professor Linda Greenhouse pointed out, the Court “made clear that it was not recognizing a right to abortion. On behalf of Plaintiff C, who could not find an Irish doctor willing to help her even assess her risks, it was simply telling Ireland that if the country chose to offer a life-saving exception to its abortion ban, it had to give women ‘an accessible and effective procedure’ to demonstrate that they qualified.”
What the decision means for Ireland’s future depends on the implementation of the ruling. As a State Party to the European Convention on Human Rights, Ireland must somehow ensure similar violations do not occur in the future. One way the Republic may do this is by softening abortion legislation and joining many of its European peers in a pro-choice stance. A more likely solution for this conservative country is to better legislate the anti-abortion exception, or, perhaps, to eliminate it entirely.
Abortion rights in Ireland are still new enough that some envision a possible swift return to abolition. The anti-abortion stance is rooted in an 1861 law that made abortion a criminal act. It was only in 1992 that the Irish Supreme Court allowed abortion and, in that case, only if the situation presented a “substantial risk to a mother’s life.”
While several government officials have said the Court’s ruling mandates further legislation, the Archbishop of Armagh, Sean Brady, said there was no obligation to change Irish law, and further reiterated the Catholic Church’s stance that neither the unborn child nor the mother may be killed under any circumstance. “The Irish Constitution clearly says that the right to life of the unborn child is equal to that of his or her mother,” Cardinal Brady said. “These are the fundamental human rights at stake.”
The world will watch with interest how Ireland chooses to apply the Court’s ruling. The United States, for example, may encounter similar debates when the conservative-led House of Representatives convenes for the next Congress and newly elected conservative state legislators take office. In Nebraska, a conservative legislature passed a ban on abortion after 20 weeks, even though most states’ bans on abortions begin at 22 or 24 weeks. If more states are successful in passing similar legislation, the country’s landmark 1973 abortion decision, Roe v. Wade, could be challenged and potentially weakened.
Even the three European countries whose abortion laws have been described as equal to, or more restrictive than, Ireland’s – Andorra, Malta and San Marino – may feel emboldened that the Court did not establish a minimum degree of protection for women seeking abortion. While not beholden to Ireland’s implementation of the Court’s ruling, anti-abortionists could look to the Republic for cues.