The Guardian – 10 December 2009
Ian Traynor in Brussels
Ireland's ban on abortion faced one of its biggest challenges today when three women forced to travel abroad for terminations turned to the European court of human rights.
In a case being watched closely in other Catholic countries such as Poland, Spain and Malta, the Strasbourg court heard the arguments for the ban from the Irish government and from lawyers for the one Lithuanian and two Irish women.
The three women, known only as A, B and C, travelled to Britain to have abortions and claim their health was imperilled and that they were traumatised and humiliated by the Irish anti-abortion laws. "All three women complain that the impossibility for them to have an abortion in Ireland made the procedure unnecessarily expensive, complicated and traumatic. In particular, that restriction stigmatised and humiliated them and risked damaging their health and, in the third applicant's case, even her life," said a court statement.
One of the women is a former alcoholic and substance abuser whose four children were in care. She feared her pregnancy would prevent her getting her children back, and went to a money lender to finance the abortion in England. Another became pregnant while undergoing chemotherapy treatment for cancer and feared for her own health and that of her child.
Lawyers and lobby groups for the three argue that the abortion ban breaches several articles of the European convention on human rights, which is policed by the court, notably the rights to life and to privacy and family life, as well as bans on inhuman and degrading treatment and on discrimination.
Today the Irish government fielded a high-profile team led by the attorney general, Paul Gallagher. He argued that the right to life extended to the foetus and said broad Irish support for the abortion ban had been tested in three referendums and was strongly embedded in the moral fabric of Irish society. The complaint was based on "legal and factual propositions which, when analysed, cannot be supported".
Abortion was outlawed in Ireland in 1861 and can bring a sentence of life imprisonment. The "right to life of the unborn" is enshrined in the constitution. According to the Irish Family Planning Association (IFPA) at least 138,000 women have travelled abroad, mainly to England, since 1980 to obtain abortions.
The Irish backed the EU's Lisbon treaty only after the other 26 countries promised its abortion ban would not be affected by the charter. But the Strasbourg court has nothing to do with the EU. It is the supreme human rights authority for the 47 countries in the Council of Europe.
Representing the women, Julie Kay told the 17 judges of the grand chamber that all three women had to borrow money to travel abroad for "clandestine" abortions and dismissed as bogus government claims that abortions were allowed in cases where the women's lives were at risk. She said that pursuing the case in court in Ireland, as demanded by Gallagher, would have been "futile and costly".
The women are being supported by the IFPA and the British Pregnancy Advisory Service on a complaint that took four years to be heard in Strasbourg and on which no ruling is expected until next year.
"Today is a hugely significant day for reproductive rights in Ireland. The fact that Ireland's draconian laws on abortion have been put under the spotlight is a landmark for women living in Ireland," said the IFPA. "Ireland's restrictive laws on abortion are totally out of step with those of its European neighbours … Women and girls do not give up their human rights when they become pregnant."
Patricia Lohr, medical director of the BPAS, said: "There is never any moral justification for the law to place a barrier between women and medical care. The Irish abortion ban risks women's physical health, requires abortions to be performed later than necessary, and creates serious emotional upset."
US anti-abortion lobbyists have been allowed to submit arguments to the court. The US Alliance Defence Fund said "the stakes are high for all of Europe" and that Ireland's defence "of innocent life is under attack".
Rights and risks
Abortion is permitted only in cases of rape, where the foetus suffers severe abnormality, or if the woman's life is at risk. The need must be certified by a doctor other than the one performing the abortion. After 12 weeks, abortions are permitted only if the life or health of the woman is endangered.
Abortions became legal in 1985. Terminations are permitted in cases of rape, up to the 12th week of pregnancy, if the rape has been reported to police. Abortions can be performed up to 22 weeks in cases of foetal impairments. Two specialists must certify that the child would suffer severe defects. There is no time limit if a woman's physical or mental health is at risk.
Abortion has been illegal under all circumstances since 1981. A woman who consents to an abortion can be jailed for up to three years, and doctors, surgeons, obstetricians or pharmacists who perform abortions up to four years.