On December 16, 2010, the European Court of Human Rights issued its opinion in the ABC vs. Ireland case, which dealt with three Irish women who filed a complaint before the ECHR alleging that the Irish government had unlawfully denied them a right to an abortion. The ECHR was explicit in its conclusion that Ireland has no obligation to make abortion lawful, but stated that in the particular case where the right to life of the unborn child and the right to life of the women conflict, Irish law should be more clear. This clarity would serve both the women seeking to preserve their lives and also the doctors who are performing their medical duties to save them.
On April 19, 2011, a group of NGOs, along with the Minister of Health for Ireland, issued a report entitled “Your Rights, Right Now.”, calling for the immediate revision of Irish laws pertaining to abortion, and claiming by restricting abortion, the state disproportionately interferes with women’s rights to health, privacy, life, freedom from inhuman or degrading treatment and non-discrimination. The report lacks an understanding of not only the ECHR decision, but also of Irish law pertaining to abortion. World Youth Alliance, a global coalition of young people promoting the dignity of the human person in policy and culture, has written the following analysis to highlight the coherence of Irish law and to analyze the ruling, showing that minor clarifications for those in the medical profession are the only requirements following the decision of the European Court of Human Rights in the ABC vs. Ireland case.
Legal Provisions in Ireland
Article 40.3.3 Irish Constitution states: “the state acknowledges the right to life of the unborn and, with due regard to the equal right of the mother, guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate that right.
Interpretation of article 40.3.3, since the constitutional reform of 1992
Irish law guarantees equal protection for mother and unborn child. Yet, when the mother’s life is threatened, it allows for the termination of unborn life in order to save the life of the mother. In the XXX case of 1992, the Irish High Court ruled that “it has to be established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health of the mother, including a risk of self harm, which can only be avoided by a termination of the pregnancy.”
40.3.3 of the Constitution also allows parties to publish information on lawful abortion services existing abroad and allows women to travel abroad to undergo an abortion.
Recently, three Irish pregnant women demanded their entitlement to receive funds from Ireland to reimburse their expenses incurred by undergoing abortions lawfully overseas. The said funds were denied in a series of Irish court cases and a complaint was filed before the European Court of Human Rights. The legal grounds for bringing the case before the ECHR were Article 8—no interference by a public authority with the exercise of privacy and family life— and Articles 2, 3 and 14—protection of everyone’s right to life; no subjection to degrading treatment; and no discrimination on any ground, respectively— of the European Convention on Human Rights.
The European Court of Human Rights ruled that there was no degrading treatment, discrimination or a violation of the right to life in two of the three Irish cases. Therefore, Irish law neither degrades, nor discriminates, nor contravenes the right to life. As a matter of fact, the ECHR found “the acknowledgement of the right to life of the unborn” in the Irish Constitution “proportionate.” The ECRH did note an unclear and insufficient regulation with regards to undergoing abortion lawfully in Ireland. Consequently, it solely found interference by the government of Ireland with the exercise of privacy and family life of the claimants.
The woman bringing the third case claimed that that she thought that her pregnancy was threatening her life and was unaware of whether, on the basis of Article 40.3.3 of the Irish Constitution, she was entitled to an exception to the prohibition on abortion. Without receiving pertinent information, she travelled to England to undergo a legal abortion. The ECHR ruled that Ireland interfered with the contender’s privacy and family life due to an absence of information on the qualifying conditions for obtaining an abortion under the exception for a threat to the mother’s life.
The statement of the High Court of Ireland was that the “real and substantial risk to the life, as distinct from the health of the mother (…)” had depended on judicial interpretation. Consequently there was a conspicuous lack of instructions for practitioners to determine the potential life-threatening effects of an individual pregnancy. For that reason Ireland violated Article 8—no interference by a public authority with the exercise of privacy and family life—of ECHR. Irish regulations didn’t define with due diligence the cases qualifying to disregard the right to life of the unborn.
In Europe, there is clear consensus on the legality of abortion, but member states have wide discretion to acknowledge and balance the right to life of the unborn. The ECHR concluded that Ireland didn’t hinder the claimants from undergoing an abortion in other European States. The Court made clear that European States were not obliged to legalize abortion in order to comply with the European Convention on Human Rights.
Ireland therefore doesn’t have to relax its regulations regarding abortion. On the contrary, the ECHR determined that Ireland was entitled to continue acknowledging the right to life of the unborn and that it had struck a fair balance concerning the issue. The “acknowledgement of the right to life of the unborn” and “the right to display information and travel abroad to undergo legal abortion” had been balanced impressively. The ECHR praised the balance brought by Ireland, which compensated for the lack of regulations and thus lessened the negligence in regards to Article 8 of the ECHR—no interference by a public authority with the exercise of privacy and family life. The Court ultimately concluded that Article 8 does not confer a right to abortion.
Right to legal abortion?
The ECHR remarked that article 40.3.3 of the Irish Constitution lacked legislative development, which “had resulted in a striking discordance between the theoretical right to a lawful abortion in Ireland on grounds of a relevant risk to the woman’s life and the reality of its practical implementation.” Consequently, the ECHR demanded a clear definition of the cases under which is legal to disregard the right to life of the unborn for the sake of the mother’s life. It determined that the violation of Article 8 came with the lack of clear procedural regulations, which can be easily solved by the Irish Parliament. Article 40.3.3 itself was never in question for violating Article 8 of the Convention, and therefore there is no legal basis on which to make the claim that Ireland must change its Constitution to allow for abortion.
In case of disagreement between a patient and her doctor, on whether the pregnancy threatens the mother’s life, only a constitutional action can decide whether it is legal to abort. The ECHR considered this Irish provision to be interference by a public authority in the exercise of privacy.” Yet, the court also stated that “it is not for the ECHR to indicate the most appropriate means for the state to comply with its positive obligations.” This statement amounts to a suggestion from the ECHR to Ireland. Ireland can therefore develop legislation to support 40.3.3. in the way it deems appropriate, which could include saying that only a physician can decide whether ending the life of the unborn child is necessary to save the life of the mother. What is needed are a few provisions outlining the exceptional circumstances where ending the life of the child is the only way to save the life of the mother, and that physicians are given deference in their determination in this regard.
Consequently, the Irish government has been encouraged to arrange accessible and effective regulations and procedures by which every individual can know whether the “acknowledged right to life of the unborn” can be balanced by the right to life of the mother. Otherwise, Ireland will continue to interfere with the exercise of privacy of individuals recognized in Article 8.
The ECHR has given Ireland guidelines to resolve this legal uncertainty. The Fifth Progress Report has stated that “clarity in legal provisions is essential for the guidance of the medical profession, so that any legal framework ensures that doctors could carry out best medical practice in saving the life of the mother.”
The court did not give Ireland an obligation to develop its legislation but suggested and gave certain guidelines. Ireland has broad discretion in deciding whether and how to comply with the decision.
The European Court of Human Rights mentioned that the “acknowledgement of the right to life of the unborn” and “the rights to display information and travel abroad to undergo legal abortion” had been balanced by Ireland impressively. Thus, the acknowledgement of the right to life of the unborn has not been questioned whatsoever.
1. Ireland is compelled to develop legislation related to Article 40.3.3 due to an absence of clear guidelines for patients and medical professionals and effective remedies in case of patient-professional conflict regarding the definition of a life-threatening pregnancy.
2. Ireland should therefore clarify and establish clear procedures as regards the definition of a life-threatening pregnancy.
3. In no way is Ireland obliged to change Article 40.3.3 of its Constitution. Abortion can remain illegal in Ireland, except in the special circumstance of having to end the life of the unborn child to save the life of the mother.
 39-44 XXX Case
 159, 166, 271 Judgement
 241 Judgement
 39-44 XXX Case; 253 Judgement
 236 Judgement
 264 Judgement
 265 Fifth Progress Report