Irish Independent – 10 December 2009
By Dearbhail McDonald Legal Editor in Strasbourg
THE Government has robustly defended Ireland's restrictive abortion laws before the European Court of Human Rights. Yesterday, Attorney General Paul Gallagher SC told the court's 17-judge Grand Chamber in Strasbourg, that a landmark challenge by three women was a "significant attack" on the Irish health system, its treatment advice and support. The women — known as A, B and C — claim their health and human rights were violated because they had to travel to Britain to terminate their pregnancies.
However, Mr Gallagher said that the case by the women was an attempt to make Ireland's abortion laws more liberal — like they are in other European countries. "The right to life of the protection of the unborn is based on profound moral values deeply embedded in the fabric of Irish society," he told the court, including Irish High Court Judge Mary Finlay Geoghegan.
The case is the first time an Irish government has appeared before the ECHR Grand Chamber since a challenge in 1988 by Senator David Norris, which led to the decriminalisation of homosexuality. If the abortion case succeeds, it could lead to lead to abortion being made available here in certain circumstances.
The court may dictate the minimum degree of protection to which a woman seeking an abortion to safeguard her health and wellbeing is entitled. Mr Gallagher said that Ireland's protection of the right to life of the unborn had been endorsed in three referenda and was explicitly recognised in a protocol attached to the Maastricht Treaty. Ireland had also secured a relevant legal guarantee as part of the re-run of the Lisbon Treaty.
Defending the Government's record, Mr Gallagher said that it "had not let matters rest" since the infamous X case in 1992 — when a court banned a pregnant 14-year-old rape victim from travelling abroad to have an abortion. That restriction was later lifted. The plethora of reviews, reports, Oireachtas committees and referenda since the plight of the X case convulsed the country is cited by pro-life and pro-choice advocates alike as a damning indictment of successive governments' failure to deal with abortion.
Lawyers acting for the three women, who did not attend yesterday's hearing, said the trio were forced to travel for "clandestine abortions" abroad, and were forced to borrow money from moneylenders or friends to pay for the procedures. Julie Kay, lead counsel for the women, said this conflicted with the minimum protection afforded under Article 8 and 14 of the European Convention on Human Rights.
Ms Kay said the Government's claim abortion was technically available in Ireland in extreme life-saving cases was "bogus" in circumstances where a doctor could face life imprisonment, or lose his licence, for carrying out a termination.
She said that the Government failed to provide statistics on how many of these 'legal' abortions had taken place here. Despite a range of committees and reports, the legal status of abortion in Ireland had not changed since the X case.
Senior Counsel Donal O'Donnell also criticised the women's action as "opaque", telling the court: "Rarely, if ever, has a constitutional court been asked to address such important issues on such an inadequate factual basis." Where a woman's life was at risk, there was a clear line in Irish law that was not difficult to apply, he added.
Last night the Irish Family Planning Agency (IFPA), which supported the case, commended the bravery of the three unidentified women for challenging Ireland's "draconian" abortion laws which, it said, were totally out of step with its European neighbours. "Ireland's restrictions on abortion violate international human rights norms because they inflict such grievous harm to women's health and well-being," said IFPA Chief Executive Niall Behan.
The IFPA believes that women's and girls' rights are disproportionately infringed upon by the inaccessibility and criminalisation of safe and legal abortion in Ireland. "The IFPA is confident (the court) will establish a minimum degree of protection to which a woman seeking an abortion to protect her health and well-being would be entitled."
The Pro-Life Campaign (PLC) said that the IFPA was "irresponsible and disingenuous" to imply that the lack of induced abortion in Ireland meant women's lives were at risk".
"The IFPA knows full well that pregnant women in Ireland receive essential medical treatment," said Dr Berry Kiely of the PLC. "Any statement to the contrary is without foundation in fact and is tantamount to scaremongering." "The IFPA may well couch its arguments in human rights language but in reality it seeks to deny the first and most important human right, the right to life."