Ireland adresses the lack of clarity on its abortion laws

By Juan Ignacio Fernandez Torres, Director of Advocacy WYA Europe

On 5 March 1992, the Irish case Attorney General v. X established the right of Irish women to an abortion if a pregnant woman’s life was at risk because of pregnancy, including the risk of suicide. On 25 November 1992, the Irish people rejected the Twelfth Amendment of the Constitution Bill, which would have excluded threatened suicide as a risk to life, thus limiting the effect of the X case judgment. On 2002, Ireland held a referendum on the Twenty-fifth Amendment. The Irish people rejected an amendment that, among other provisions intended to tighten Irish abortion laws, excluded threatened suicide as a risk to life.

On December 2010, the European Court of Human Rights held in A, B and C v. Ireland that European States are not obliged to legalise abortion to comply with the European Convention on Human Rights. Under this principle, Ireland has no obligation to make abortion legal. (Ireland is one of only two EU countries where women cannot undergo an abortion.) The Court ruled that Irish law did not respect women’s right to privacy when the right to life of the unborn child and the right to life of a pregnant woman conflicted. It demanded that Ireland define those cases where it would be legal to disregard the right to life of the unborn for the sake of the mother’s life. However, the ECHR acknowledged that Ireland had balanced impressively “the right to life of the unborn” and “the right to display information and travel abroad to undergo legal abortion.”

On 16 June 2011, in light of the A, B and C case, the government of Ireland issued an Action Plan whereby it committed itself “to ensuring that the judgment in this case [would be] implemented expeditiously” by establishing “an expert group, drawing on appropriate medical and legal expertise with a view to making recommendations to government on how this matter should be properly addressed.”

The Expert Group Report was discussed in the Parliament in December. Following the Parliamentary discussion, on 20 December the Government made a decision on the option to be pursued to implement the judgment, namely “the drafting of legislation, supported by regulations [that] will be within the parameters of Article 40.3.3 of the Constitution (which grants equal protection for mother and unborn child) as interpreted by the Supreme Court in the X case […] and making appropriate amendments to the criminal law in this area.”

Health Minister Dr. James Reilly explained, “The advantages of this option are that it fulfils the requirements of the judgment, it provides for appropriate checks and balances between the powers of the legislature and the executive would be amenable to changes that might arise out of clinical practice and scientific advances.” He also remarked that “the government has decided the form of action to be taken,” and that they “will not pre-empt the debate that must follow by speculating on details to be decided later in the process.”

On the 8th, 9th and 10th of January 2013, the Irish Parliament’s Joint Committee on Health and Children held a three-day public hearing where they discussed the implementation of the option chosen. The Irish Government’s decision is significant because Ireland has finally selected its response to the judgment of the European Court of Human Rights. Dr. Reilly said that the Government is committed to ensuring the safety of pregnant women in Ireland. The Government will stipulate what is legal for the profession and who must provide the care.