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European court to be told Irish abortion ban violates rights

By December 30, 2009News

Irish Times – 30 December 2009

by CARL O'BRIEN, Chief Reporter

THE EUROPEAN Court of Human Rights will press the Government on whether its ban on abortion violates women’s human rights at a legal challenge to the State’s abortion laws next week.

The case, taken by three women who say their health was put at risk by being forced to go abroad for abortions, is due to be heard before the court’s grand chamber of 17 judges.

Information circulated to legal teams for the Government and the three women show one of the main lines of questioning will focus on whether the State’s abortion law violates a key article of the European Convention on Human Rights.

Article 8 says a person has the “right to respect for private and family life” and public authorities should not interfere with this right.

The court will also seek information on what exact procedures are in place where a pregnancy poses a risk to the life of the mother, and how a woman pursues a lawful abortion in Ireland. Under the State’s laws, abortion is illegal here but may be performed if there is a substantial risk to the mother’s life, including the threat of suicide.

The court is to have a full hearing of the case before its grand chamber of 17 judges on December 9th.

Based in Strasbourg, the court, which is separate from the EU, adjudicates on human rights issues among all 47 member states of the Council of Europe. As a signatory to the European Convention on Human Rights – now incorporated into Irish law – the Government is obliged to seek to implement whatever decisions are made by the courts.

The identities of the women, known as A, B and C, will remain confidential as the case proceeds.

They include a woman who ran the risk of an ectopic pregnancy, where the foetus develops outside the womb; a woman who received chemotherapy for cancer; and a woman whose children were placed in care as she was unable to cope.

They argue that the lack of any effective remedy at home means they have satisfied the requirement to exhaust domestic legal remedies. In addition, they say that taking a case would have been costly, futile and could have forced them to relinquish their anonymity.

The Government, however, contends that domestic legal remedies have not been exhausted by the women. It also robustly challenges suggestions by them that there is a lack of post-abortion care or counselling in Ireland. Among the questions the court will ask of the Government, and the the three women, include:

Have the applicants exhausted domestic legal remedies available?

What guarantees of confidentiality could the women have had regarding such domestic proceedings, bearing in mind other cases such as the “D” case (which involved an Irish teenager in the care system who won a legal battle to be allowed have an abortion abroad)?

The case will be watched closely by observers given a ruling by the same court in recent years that resulted in Poland being instructed to guarantee access to legal abortions.