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Why TDs harbour secret hopes over abortion challenge

By 13 December 2009October 8th, 2018News

Sunday Times – 13 December 2009

Liam Fay

Hands Off Ireland! was the slogan on placards waved by anti-abortion activists protesting outside the European Court of Human Rights in Strasbourg last week. The campaigners were directing the warning at judges hearing the legal challenge taken by three women who claim Ireland’s restrictive abortion laws endangered their health and violated their rights because they had to travel abroad to terminate their pregnancies.

As pro-life sloganeering goes, Hands Off Ireland is relatively mild. Ironically, the phrase can also be read as an uncannily accurate commentary on a political regime that has reneged on its obligation to confront the pressing requirement for abortion legislation. ‘Hands-Off Ireland’ is a place where seeing and hearing no evil is government policy.

It’s now 17 years since the X Case — the shameful saga of a 14-year-old girl who was raped by a friend of her father’s, travelled to the UK for an abortion and was brought back to Ireland by order of the attorney general.

After years of theological hypothesising, the messy complexities of real life had delivered an abrupt wake-up call. In two subsequent referenda, the electorate voted in favour of according women the right to information about overseas abortion clinics, and the right to travel to use such clinics. In a third referendum in 1992, a proposal to permit limited abortion to save a woman’s life was defeated.

In overturning the attorney general’s decision on the X Case, however, the Supreme Court ruled that abortion is legal here in cases where the mother’s life is at risk, and this includes the risk of suicide. Legislation was obviously needed to clarify the law around abortion but successive governments have refused to enact it.

This dereliction of duty has created enormous uncertainty, especially for medical practitioners. Nevertheless, the Oireachtas persists in turning a blind eye. Most politicians seem content that thousands of women go abroad for abortions every year as long as the pretence is maintained that Ireland is a uniquely fortunate haven where abortion services are neither needed nor wanted.

Thankfully, reality has again gate- crashed the fool’s paradise. The three women who’ve taken the Strasbourg legal challenge have an undeniably strong case. Clearly conscious of this, the government has fielded a high-powered defence team led by Paul Gallagher, the attorney general. Nevertheless, lawyers for the women seemed to win the early skirmishes simply by highlighting the myriad ways in which Irish abortion law breaches the European convention on human rights, to which Ireland is a signatory.

Two of the women are Irish while the third is a Lithuanian living in Ireland. One was an unemployed, long-term alcoholic who was trying to regain custody of her four children when she became pregnant. Another was at risk of an extra-uterine pregnancy, while the third was undergoing chemotherapy for cancer and feared a relapse. All three say they were forced to travel abroad for abortions, making the procedures “unnecessarily expensive, complicated and traumatic”.

Pro-choice campaigners aren’t alone in hoping that a court ruling in the women’s favour would lead to a de facto unravelling of Irish abortion law. Privately, liberal TDs within Fianna Fail and Fine Gael must also share this wish, as an edict from Strasbourg would potentially get them off this most troublesome of hooks.

While they occasionally rail against Eurocrat intrusion, many Irish politicians actually welcome the alibi it provides. It was, after all, a European court ruling that provided Fianna Fail with the cover to decriminalise homosexuality in 1993.

This time there’s a complication. In statements agreed between Irish government officials and their EU counterparts, the Irish people’s stated abhorrence of abortion is embedded in protocols attached to the Maastricht and Lisbon treaties. So if the European court rules against Ireland next year, legislators will face unpicking the complicated knot of their own pieties. Having overplayed the hands-off strategy, politicians could soon find themselves with their hands full.