The European Court on Human Rights has issued a complex ruling this week on the status of abortion in Ireland, the significance of which is hard to estimate. The Court ruled in a case brought by three women from Ireland claiming that their rights were violated when they were not able to terminate their pregnancies by abortion. The Court has upheld the claim of one woman, who had been diagnosed with cancer before becoming unexpectedly pregnant and who wanted to terminate her pregnancy in order to undergo cancer treatment. Their ruling will require Ireland to amend its abortion legislation in ways poorly defined.
The status of abortion in Ireland is complex. Consonant with Catholic teaching, a right to life, rather than a right to abortion is enshrined in Ireland's constitution. The 1861 Offences Against the Person Act absolutely prohibits abortion in Ireland, but in 1983 an amendment to the Constitution came into effect that stated “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.” The 1983 amendment is therefore open to the possibility of the loss of the life of the child for the sake of saving the life of the mother. However, the circumstances and procedures for such a sacrifice were never explicity defined. Therefore in practice abortion has not been performed in Ireland; were a doctor to perform even an abortion he or she deems medically necessary to save the mother, both doctor and mother would expose themselves to the risk of prosecution and the doctor could lose his license.
The case is further complicated by the 1992 Irish Court's ruling on Case X in which a 14-year-old girl resorted to seeking an abortion in the United Kingdom after being raped and becoming pregnant; she sought the abortion because she was suicidal, and the Court ruled that abortion should have been make available to her in Ireland because her life was put at risk due to the situation of her pregnancy. Despite the ruling, Ireland still made no move to legislate clearly in what circumstances doctors should be allowed to perform abortions in Ireland. So while both the 1983 amendment and the 1992 court case open up the possibility of abortion in certain very limited circumstances, Irish doctors live in a culture of fear and confusion as to when they can actually recommend abortion to save the life of the mother.
The risk now is that the European Court on Human Rights is requiring Ireland to generate the legislation it has continually put off, providing a window of opportunity for pro-choice advocates to push through a much more permissive abortion law than the Irish people of 1861, 1983, and 1992 every intended. This is a dangerous moment in Ireland. Some are calling for a referendum on the decision of the courts in Case X, hoping to overturn the 1992 decision and therefore exclude risk of suicide as grounds for legal abortion. It is not entirely clear that such a referendum would have that hoped-for outcome, though figures do suggest that despite massive cultural shifts in Ireland in the last three decades, roughly 70% of Irish people do still approve of the 1983 formulation of the right to life for both baby and mother. Some also fear that the European Court could force Ireland to legalize abortion on demand, consonant with the rest of the EU, except Malta, whose situation is similar to Ireland's.
Of course, the fact that abortion on demand is illegal in Ireland does not mean that Ireland has been spared from the scourge of abortion. Cheap flights to London make it easy for Irish mothers to procure abortions in the UK, and it is estimated that several thousand do annually. However, that number has been falling by hundreds in the past eight consecutive year: in 2001, 6,500 women with Irish addresses obtained abortions in the UK, while last year that number had fallen to just 4,500. The practice is generally accepted, so that while it is still taboo to speak openly about seeking abortion outside of Ireland, it is a well known and politely ignored phenomenon- even Brendan Behan wrote about it, in his collection of short stories called After the Wake, with a party to welcome a girl back to Dublin who had just taken a 'holiday' in Britain to obtain an abortion serving as the plot for one of his stories. Abortion is complexly situated in Ireland's culture, in a society that has become very permissive in a very brief interval. Nevertheless, it is still an overwhelmingly pro-life country and has one of the best track records in Europe for maternal health.
For further insight into the developing story, stay tuned here, and check out these articles:
"Legislating Abortion Can No Longer Be Evaded" from the Irish Times, 12/17/2010
"Abortion Travel Numbers to UK Fall" from the Irish Times, 12/16/2010
"European Court Says Irish Abortion Laws Breach European Rules", Catholic News Service, 12/16/2010
The full description of the three women's cases can be found at: