Irish Examiner – 10 December 2009
THE state was accused of hypocrisy by insisting women whose lives are at risk could get an abortion in Ireland while under legislation from 1861, both the woman and doctor faced life in jail.
Julie Kay, the counsel representing three women who believe they were forced to travel to Britain for abortions or face a risk to their lives or health, told the European Count on Human Rights that Ireland's prohibition on abortion is so strict and inflexible that none of the women considered bringing a domestic legal challenge.
The US expert told the Grand Chamber of 17 judges that only one of the three – known as C, who had cancer – had any hope of qualifying for an abortion given that her life was at risk. But, she said, C applying to the courts for a mandatory order to obtain an abortion would jeopardise her health, would cost her money she could not afford, would breach her anonymity and not necessarily result in her having an abortion in Ireland.
Ms Kay said it was not possible to find a doctor willing to carry out the procedure in Ireland given the vagueness of the guidelines and the risks they faced. One doctor could find that C's pregnancy threatened her life because of her cancer and subsequent tests, while another doctor might disagree and no doctor would risk life in jail for making such a decision, Ms Kay said.
"Given the lack of guidance for doctors the Government cannot fault doctors for failing to give advice," she added. "The Irish criminal act remains in full force – life in jail, a chilling and disproportionate penalty".
The state's insistence that the women should have taken their case to the Irish courts before coming to Strasbourg was a red herring because the way the legislation is applied in Ireland contravenes the Convention on Human Rights, she said. The state had not addressed the issues raised by various cases in relation to abortion including the X case in the 1980s, other than the right to travel for an abortion, despite all the reports from Oireachtas committees and Green Papers.
"Claims that there have been judicial developments are fictitious – since the X case, there has been no development in the law_ and on protecting the life and health of women," she said.
The law held the life of the mother and the unborn equal but did not help with balancing these rights. "When life begins is not an issue here. There has been no attempt to balance the rights of the woman and foetus.
The law disproportionately protects foetal life and as a result each of the three were forced to act in a clandestine matter."
Answering a series of questions put by one of the Grand Chamber, Irish judge Mary Finlay Geoghegan, Ms Kay said abortion is allowed if it is necessary to save a woman's life – and made no distinction between life and health: It was not feasible for women to wait until their health had been so jeopardised that their life was now at risk before being allowed to have an abortion, Ms Kay said later.