This week's abortion ruling in Europe will force the Irish political system to grapple with the abortion issue, after 18 years of failure to legislate, writes CARL O'BRIENin Strasbourg
IT FELT STRANGELY anti-climactic in the draughty grand chamber of the European Court for Human Rights on Thursday morning.
A solitary bell rang out as two judges walked into a near-empty room before sitting at a sweeping semicircular bench that can seat 20 or more judges. French justice Jean Paul Costa spoke for just a few minutes to outline the case, but the content of the judgment will resonate for much longer.
The ruling effectively told Irish politicians to do what they have consistently failed to do over the past 18 years: properly implement the right to a lawful abortion in Ireland.
The uncertainty generated by the lack of legislative guidelines for doctors, together with the “chilling effect” of criminal sanctions for illegal abortion, made it far from certain that a woman could actually obtain a legal abortion here when her life was at risk. There was no room for an Irish-style fudge, the court seemed to say. The decision will force political parties to grapple with an area they have long tried to avoid.
But why have successive governments been so reluctant to touch these issues? What makes legislators promise inactivity on an issue that can cause personal anguish for many vulnerable citizens?
THE REALITY IS that hypocrisy has long dominated public discussion about abortion, with frightened legislators preferring to leave hard decisions on hard cases to the courts.
There have been no fewer than five abortion-related referendums since 1983, but the issue still divides politicians, as well as voters. The anti-abortion amendment to the Constitution in 1983 created such bitter divisions that politicians were reluctant to revisit the issue – so much so that they never put a legislative framework in place to deal with that constitutional change.
The issue came back to haunt them in 1992. A 14-year-old rape victim was brought to England by her parents to secure an abortion. The parents asked the Garda if DNA from the aborted foetus might be used to secure a conviction against the rapist.
Instead the State rushed to obtain a court order that demanded the parents return to Ireland, with their pregnant daughter, or face charges and possible imprisonment if they procured an abortion for her outside the jurisdiction.
In the midst of a divisive public debate the Supreme Court came up with an Irish solution to an Irish problem: abortion could be allowed where the life as opposed to the health of the mother was threatened. In this case suicide was the risk to the girl’s life.
The then taoiseach, Albert Reynolds, then introduced three referendum proposals, one dealing with the right to travel, another covering the right to information about abortion and the third or so-called substantive amendment dealing with the circumstance in which the threat to a mother’s health could be grounds for abortion.
Two of the proposals, the right to travel and information, were passed. However, the third was defeated by a combination of conservatives who believed that the measure was too liberal and liberals who believed that it was too conservative.
The referendums were held on the same day as the general election of 1992, which led to the formation of a Fianna Fáil-Labour coalition. Labour insisted that the programme for government include a commitment to legislate for abortion in light of the X case, as well as legislating for travel and information. In the event none of this legislation emerged.
When the Reynolds government fell in 1994 it was replaced by the so-called rainbow government led by John Bruton, which also included Labour and a commitment to legislate. Legislation to deal with travel
and information was introduced by the coalition and passed through the Dáil in
the face of opposition from Fianna Fáil. Yet, once again, legislation to cover the X case never emerged.
In 1996 the Constitution Review Group recommended that legislation be introduced to implement the X judgment, specifying the conditions under which abortion could be carried out lawfully in Ireland.
This was followed by a discussion paper – the 1999 Green Paper – which noted that legislation on lawful abortion would have several advantages. It would provide a legal framework where the need for abortion could be assessed, rather than resolving cases one by one before the courts; it would allow pregnant women whose lives are in danger
to have abortions in their home country; and it would provide legal protection for medical professionals involved in terminating pregnancies.
In 2002 the taoiseach at the time, Bertie Ahern, was defeated on a proposal to roll back the X case, having promised legislation in the event of failure. Yet again he simply walked away from the problem.
THE CHURCH OF IRELAND Bishop of Ossory, the Right Rev Michael Burrows, has been among those most critical of the Oireachtas for failing to do its duty to address these issues, particularly since the aftermath of 1992 X case. The reason, he says, is the “systematic spinelessness” of lawmakers.
“Eighteen years is a long time; it is the time it takes individual humans to come of age. As a society, however, we have failed dismally to come of age in relation to matters at the heart of the X case,” he said at a recent event.
“We still remain hypocritical and incapable of engaging with the truth about ourselves at a legislative level – despite successive referendums on these matters, tragic individual human stories are dragged all the way to the Supreme Court in the absence of legislation.”
But the Catholic Primate of All-Ireland, Cardinal Seán Brady, takes a different view. He maintains that the issue is one for the Irish people, not lawmakers.
“No law which subordinates the rights of any human being to those of other human beings can be regarded as a just law,” he said this week. “[This week’s] judgment leaves future policy in Ireland on protecting the lives of unborn children in the hands of the Irish people and does not oblige Ireland to introduce legislation authorising abortion . . . The Irish Constitution clearly says that the right to life of the unborn child is equal to that of his or her mother.”
Minister for Health Mary Harney accepted that legislation would be needed to implement the court’s decision but indicated this was unlikely to happen before the next election, which is likely in the spring.
Labour, which has called for legislation at every election since 1992, said the issue could no longer be dodged, but it would not insist on it as a “deal breaker” in the next government. Its potential coalition partner in the next government, Fine Gael, said only that it would give careful and detailed consideration to the implications of the ruling and would consider what steps needed to be taken. Fine Gael leader Enda Kenny has previously pledged not to legislate for abortion where the life of a mother is at risk.
Whatever happens, though, any future government will need to act sooner rather than later. Ireland has always implemented the binding findings of the European Court of Human Rights, even if it has taken several years to do so.
It will need to do so again, unless it is willing to risk its international reputation for upholding human rights. As much as it may not like it, the political system will not be able to shirk its responsibilities for much longer.
The case before the court : Three women and their human rights
This week’s ruling by the European Court of Human Rights was the culmination of a five-year campaign, supported by the Irish Family Planning Association (IFPA), to place an international spotlight on Ireland’s abortion laws.
The three women, who received specialist counselling and support from the association, decided to take a joint case against the State over what they felt were discriminatory restrictions on abortion here. The women – two Irish and one Lithuanian woman living in Ireland – wish to remain anonymous and have declined to give any media interviews.
The case was carefully constructed to test how our laws would hold up against the human- rights standards contained in the European Convention of Human Rights.
The first applicant, “A”, was living in poverty when she became pregnant unintentionally. Her other children were in State care and she feared that having another child would jeopardise her chances of regaining custody of her children.
The second applicant, “B”, took the morning-after pill after sex but became pregnant – she was told by doctors that she ran the risk of an ectopic pregnancy, where the foetus develops outside the uterus.
It always seemed unlikely that the court would rule in favour of these two women; to do so would significantly broaden access to abortion in Ireland on health and other grounds. The third applicant, “C”, always had the best chance of being successful. She had a rare form of cancer and feared that becoming pregnant could cause a relapse in her condition, but she was unable to get an opinion from doctors about whether she could have a lawful abortion. The European Court sided with her. It found that the lack of any legislation or official guidance on when a lawful abortion can take place was a violation of her human rights.
For the three women and the IFPA the case was regarded as a major success, even if the court found there was no violations of the rights of “A” and “B”. For Niall Behan (left), the association’s chief executive, the ruling is a “landmark day for women” given that it has found that abortion, in certain circumstances, should be legalised here.
“Through our services we know that women living in Ireland are frustrated that they have to leave the country to access health services they feel should be available to them at home,” he said. “Women don’t want sympathy; they simply want access to the health services they need.”
