ECHR rules against Ireland in abortion case

ECHR building, Strasbourg

A woman who travelled out of Ireland to terminate a pregnancy while in remission from cancer had her human rights violated because of the country’s ban on abortion, European judges ruled today.

The Lithuanian woman was one of three unnamed women fighting a landmark legal battle to have Ireland’s abortion laws overturned.

The other two had their case dismissed by the European Court of Human Rights (ECHR) in Strasbourg.

The women, known only as A, B and C, including two from Ireland, took a case against the Government claiming restrictions on abortion stigmatised and humiliated them, and risked damaging their health.

All three women said they suffered medical complications after their abortions in the UK in 2005.

The women said it was unnecessarily expensive, complicated and traumatic.

The Strasbourg court found going overseas put psychological burdens on the women but that the necessary medical advice and treatment for before and after abortion was available in Ireland.

The judges unanimously ruled that the first two women’s rights were not violated by being forced to travel because Irish law was legitimately trying to protect public morals.

They found the abortion ban strikes a fair balance between the women’s rights to respect of their private lives and the rights of the unborn.

The third applicant, the only successful one, claimed her life had been put at risk by being forced to travel to England for the procedure.

The court was told she was worried her pregnancy would cause a relapse of cancer. She also said she was concerned about a risk to the foetus if she carried to full term and claimed she could not obtain clear advice in Ireland.

Under Irish law abortion is only allowed if there is a real and substantial risk to the life of the expectant mother.

In C's case, the judges ruled that the only non-judicial means for determining the risk she was facing was a doctor’s opinion, which they said was ineffective.

They also said the doctor faced a “chilling” threat of life in jail if he or she ordered an abortion and was later found to be wrong.

The European Court of Human Rights criticised the Government for leaving its courts with a lack of clear information regarding lawful abortions in the country.

It said there had been no explanation why the existing constitutional right to abortion, due to real and substantial risk to the life of the expectant mother, had not been implemented.

The judges said Ireland breached the woman’s right to respect for her private life because of this failure.

Despite referenda and court rulings on the issue since the early 1980s, governments have not enacted legislation regulating the constitutionally guaranteed right.

Department of Health officials and the Attorney General's office in Dublin were considering the ruling.

According to Britain’s Department of Health, 4,422 women gave Irish addresses at UK hospitals and clinics while attending for abortion. The figure is down from 6,673 in 2001.

Susan McKay, chief executive of the National Women's Council of Ireland, accused the Government of putting up a shameful defence of the gap in Irish law.

“This ruling is binding and the Government must now legislate,” Ms McKay said.

“The Government tried to claim that its cowardly position was based on ’profound moral values’.

This was a shameful defence – how can forcing women with life-threatening illnesses to go abroad for a medical procedure be moral?

“The decision to have an abortion is not a happy one or one that can be lightly taken, but there are circumstances in which it is necessary.”

Jan O’Sullivan, Labour’s health spokeswoman, said the judgment was an embarrassment for Ireland after Irish courts set out rights to a termination and lawmakers failed to act.

She added: “But the absence of legislation has left those with crisis pregnancies and members of the medical professional in an impossible position.”

Tracey McNeill, vice president of Marie Stopes International, said: "This is a landmark ruling and an important first step to ensuring that women have access to safe abortion services in Ireland.

“The court highlighted that the law needs to be changed to ensure that doctors feel confident that they won’t face prosecution for providing abortions if the woman’s life is considered to be at risk.

“What we would like to see in the future is Irish women having the same fundamental rights to choose as people in the rest of Europe.”

Julie F Kay, lead legal counsel for the women, said: “For decades the State has ignored its legal responsibility and has turned a blind eye to protecting the life and health of women in such dire circumstances.

“No other woman in a life-threatening situation should be forced to endure the uncertainty, humiliation and distress that Applicant C in the European Court of Human Rights case did when faced with a threat to her life and health.”

Niall Behan, chief executive of the Irish Family Planning Association (IFPA), said the ruling was a landmark for Ireland and, in particular, for women and girls.

“The very considered and clear view of the European Court of Human Rights leaves no option available to the Irish State other than to legislate for abortion services in cases where a woman’s life is at risk,” Mr Behan said.

“As a first and immediate step, we are calling on the Government to set out how it intends to address today’s ruling, and ensure that no further violations of human rights take place because of the State’s failure to offer safe and legal abortion services in albeit limited circumstances.

“We don’t need another constitutional referendum, nor do we need any further court judgments.”

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