|Dr. Farooq Hassan — Barrister at Law, Attorney at Law (US); Senior Advocate Supreme Court of Pakistan (QC); Professor, Harvard; Special UN Ambassador for Family; President of Pakistan Family Forum & Institute of Family Studies; Member of Planning & Selection Committees, World Congress of Families|
The European Court of Human Rights (ECHR hereinafter) recent holding that abortion in Ireland is illegal in every circumstance except when there is a “real and substantial risk” to the mother’s life was made with respect to a country with the most stringent anti-abortion laws in Europe. In its landmark judgment delivered on December 16 in Strasbourg, the court noted that despite the provision in the Constitution of the Republic permitting abortion in case of a “real and substantial risk” to the mother’s life the government had made it practically impossible for women to get either medical advice or abortions
The Court held that there had been no violation of Article 8 of the European Convention on Human Rights (right to private and family life) in respect of plaintiffs A and B, but held unanimously, that there had been a violation of Article 8 in respect of plaintiff C who was suffering from cancer. The peculiarity of the decision is that the European Court held that C could not access her rights to an Abortion (which allows this recourse only when her life is in danger) under the Irish Constitution 40.3.3, but that she had a remedy against the country’s government under the European law. The three plaintiffs had complained about the restrictions on the possibility of abortion in Ireland.
The ECHR held hearings in this matter on 9th December, 2010 and issued a holding that 2 out of those 3 women had essentially failed to establish in their arguments that the Constitution of Ireland vide article 40.3.3 had been violated.
Thus the key sub article of the Constitution by which abortions are covered is 40.3.3:
1. “The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.”
2. “The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”
3. “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.”
4. “This subsection shall not limit freedom to travel between the State and another state.”
5. “This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.”
It is clear that the crucial provision of the Constitution is sub clause 3 quoted above, which expressly provides:
“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 third applicant, however, succeeded and established that her “rights to a private life” which as held by the ECHR are specifically protected under Article 8 of the European Convention Human Rights and thus stood violated.
This right reads as follows:
Article 8. Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The fundamental juristic questions that, inter alia, need to be raised are:
1. Does the European Convention of Human Rights allow the ECHR the judicial power to adjudicate, in simpliciter, on the provisions of the Irish Constitution? If so, how authoritative would such construction be?
2. Once the Court has decided that the European Convention does not give a right to an abortion, should that have been the end of the matter?
3. Should the task of deciding issues dealing with the interpretation of the Irish Constitution vest in the Irish Supreme Court or the ECHR?
The facts of the ABC judgment are in respect of the case of a woman of Lithuanian origin who had a rare form of cancer and lived in Ireland. By travelling to Britain to have an abortion only to find that doctors in Ireland had been unwilling even to tell her if her health were being jeopardized by her pregnancy. After finding Ireland at fault for denying the woman an “effective or accessible procedure” to establish her right to a lawful abortion and thus violating her constitutional rights, the court ordered the Irish government to pay her 15,000 Euros, about $20,000.
Prime Minister of Ireland Brian Cowen said in Brussels that both the ruling had raised “difficult issues” and that it was “too early to predict whether legislation would be needed.” These sentiments were added to by the Irish Premier when he was specifically asked to comment that while criticizing the Republic’s laws relating to abortion, the ECHR had nevertheless upheld the country’s right to prohibit abortion.
Ruling in the cases of the two other women, who both obtained abortions abroad, the court said that while Ireland’s restrictions on abortion interfered with their right to have their private lives respected, the policy of the Republic was quite permissible as it is based on “legitimate aim of protecting public morals as understood in Ireland.”
The court’s holding has thus two important points to consider for the advocates of the pro-life movement:
These dicta of the ECHR jurisprudence are of vital significance since they emphasize, within the context of the questions posed above, that laws of public moral nature remain within the domestic jurisdiction of 47 member states of the European Community as well as that they are still in compliance with the spirit of the European law; the enforcement of the country’s own constitution has to be watched closely by the Strasbourg Court.
Some background information about Ireland’s constitutional history on this point would be helpful. Laws and procedure dealing with this subject is essentially regulated by a 1861 law that makes abortion—either providing or obtaining one—or intentionally provoking a miscarriage, into criminal offences; these offences carry a possible life sentence.
However, over the next century and a half there took place a number of referendums and precedents of important cases that led to legislative changes. It is thus now safe to say that the position is not quite what it was in the middle of the 19th century. A 1983 referendum guaranteed that the life of the mother would be taken into account along with that of the unborn child.
The Irish Supreme Court in a vitally significant decision in 1992 held that preventing a 14-year-old rape victim from seeking an abortion abroad was not obligatory and that an abortion was legal in Ireland if there was a “substantial risk to the mother’s life”.
Another referendum in 1992 had already lifted the ban on traveling abroad for abortions; indeed it had made it legal for abortion rights groups to disseminate relevant information about the modalities of getting such abortions outside Ireland.
Plaintiff C had unintentionally became pregnant and was afraid that her cancer would relapse as a result of her pregnancy; advocates for abortion rights maintain that as eventually held by the ECHR, this ruling provides us with a good test case since it emphasizes how Irish law on abortion is really fundamentally flawed by being essentially against the interests of both doctors and patients.
Another releveant point is the mechanisms that is practically available to a person under the laws of Ireland. The court clearly castigated Ireland for laws that have a prohibiting effect on doctors’ ability to counsel patients effectively.
A doctor and a patient concurrently run the risk of “serious criminal conviction and imprisonment” if the doctor is of the view that the pregnancy that threats to the mother's health should be terminated but is afraid of being overruled by a subsequent bureaucratic opinion.
This abortion matter of the three women was noted with concern and attention internationally; this is evident from the fact that the court received several Amicus briefs submissions from leading American groups representing both sides of this debate.
Advocates for abortion rights estimate that 5,000 Irish women have abortions every year in neighboring Britain.
Dr. Mary Favier, spokeswoman for Doctors For Choice—an Irish group that advocates more lenient abortion laws—said:
“Silence has too long been part of abortion in Ireland. This ruling will fundamentally alter that silence, and doctors will have an important role as voices for change in any abortion discussions and as vocal supporters of women’s reproductive health rights.” 
On the other side, advocates of the pro-family movement are plainly fearful of the far reaching implications of this decision.
A protagonist of this view, William Saunders, thinks that
“...any directive from the Irish government to doctors to begin “prescribing abortion” in such cases, i.e., when someone fears merely the possibility of a fatal illness (there is no reason to think this is restricted to cancer cases alone), will likely result in a wholesale liberalization of “abortion rights” in Ireland.” 
While it is now too early to prognosticate with precision on this eventuality towards “liberalization” based on apprehensions, it is seems arguable that the larger writing on the wall is be quite emphatic in its focus.
Like in every society, the ultimate fate of such evolutions depends upon the collective will of the concerned people.
In arriving at such fundamental decisions, religion and history of that society has a pivotal role to play. As such, it is really for the Irish people specifically, whether the philosophical message of this jurisprudence is accepted or not by them in times to come.
It is possible that in order to go ahead, the heavily pro-life Irish people may well alter the existing constitutional scheme to make it even less prone to any interpretation that could blend itself to the kind of conclusion now reached by the ECHR; alternatively, the people may well accept the flow of European societal trends that are currently in evidence in much of Europe on this subject.
I feel that, considering the theories and the practice developed by primarily the Western Nations since the last five decades of 20th century relating to fundamental rights, emancipation of women and by the norms now emanating from International Conventions such as CEDAW and the notion of reproductive rights, it is more than possible that the result reached in this case by the ECHR may well hold the field in the foreseeable future.
What the real worry of the pro-family partisans is self evident in cases of this nature. But, with respect, the road for achieving the desired result in significant court cases is hardly achieved by simply criticizing, ex post facto, the decision.
If genuine progress towards such an eventuality is really wished, it requires, in my view, a different kind of approach. It is not possible now, in this brief legal survey of the Irish case, to delve deeply in this modality; however, at an appropriate juncture I would certainly like to go more deeply into this matter to articulate my perspectives of how best to counter such evolution and to suggest, in particular, the precise role that the pro-family NGO community can effectively play to meet this changing moral and juridical yet most disturbing metamorphosis...