Abortion situation in Ireland 2008

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COUNCIL OF EUROPE
EUROPEAN COURT OF HUMAN RIGHTS
APPLICATION NO. 25579/5
A, B and C
Applicants

v.
IRELAND
Respondent
JOINT WRITTEN OBSERVATIONS
OF THIRD PARTY INTERVENERS:
· The European Centre for Law and Justice on Behalf of
Kathy Sinnott, Member of European Parliament, Ireland:
South;
· The Alliance Defense Fund on Behalf of the Family
Research Council, Washington D.C., United States;
· The Society for the Protection of Unborn Children, London.
filed on
14 November 2008
1
1. The interveners are dedicated to the defence of the sanctity of human life.
They are grateful for the opportunity to place these observations before the Court.
Their comments are limited to general questions about the abortion situation in
Ireland
and its relation to various Articles of the Convention, and they do not
address the specific facts of this case or its Applicants.
The Court Must Scrutinise Domestic Remedies under Articles 13 and 35
2. Article 35 of the Convention requires an applicant to exhaust domestic
remedies, and Article 13 entitles applicants to a basic procedure for trying to
protect their rights. Irish law and practice establishes not only the existence of
remedies sufficient to satisfy Article 13, but a high burden of exhaustion.
3. Under Article 35(1) therefore, the Court must decide whether the
Applicant, under the collective circumstances of the case, did everything they
could reasonably be expected to do to exhaust domestic remedies.1 This Court has
also stressed that it is an established principle that in a legal system providing
constitutional protection for fundamental rights, that it is imperative that the
aggrieved person(s) test the extent of that protection and, in a common law
system, to allow the domestic courts to develop those rights by way of
interpretation. In this respect, it is recalled that a declaratory action before the
Member State’s High Court, with a possibility of an appeal to the Supreme Court,
constitutes the most appropriate method under Irish law of seeking to assert and
vindicate constitutional rights.2
4. The Irish Supreme Court is willing and ready to consider any case
involving the intimate interplay between the rights of the mother to her own
independence and bodily integrity and the rights of the unborn child, noting that
no interpretation of the Constitution was intended to be final for all time. To this
extent, the Court in D. v. Ireland recalled the comments of the Chief Justice of the
Irish Supreme Court in the X case, stating that this is “peculiarly appropriate and
illuminating in the interpretation of [the Eighth Amendment] which deals with the
intimate human problem of the right of the unborn to life and its relationship to
the right of the mother of an unborn child to her life.”3
5. The European Convention on Human Rights Act (2003) also provides a
mechanism by which applicants can plead their Convention rights in domestic
1 ECHR, Aksoy v. Turkey, Judgment of 18 December 1996, Reports of Judgments and Decisions
1996-VI, § 54; ECHR, Merit v. Ukraine, Application no. 66561/01, § 58, 30/03/2004; ECHR,
Isayeva and Others v. Russia, Application nos. 57947/00\, 57948/00 and 57949/00, §145,
24/02/2005.
2 ECHR, D. v. Ireland, Application No. 26499/02, Admissibility decision of 27/06/2006, § 85;
ECHR, Patrick Holland v. Ireland, Application no. 24827/94, Commission decision of 14/4/1998,
DR 93, p. 15; ECHR, Independent News and Media and Independent Newspapers Ireland Limited
v. Ireland, Application no. 55120/00, (dec.) 19/07/2003.
3 D. v. Ireland, op. cit., § 90.
2
courts. To protect confidentiality, the Publicity Rule in Ireland allows persons to
apply for in camera proceedings, similar to that set by the Provisions Act 1961
which relates to minors. Beyond this, certain practices in Irish judicial procedure
also allow for women seeking abortions to keep their identities secret.4
6. While this Court has recognised that in particular circumstances an
applicant may exceptionally be absolved from exhausting a domestic remedy that
is available, it has constantly held that legal advice as to the possibility of success
before national courts does not constitute a valid excuse for not exhausting a
particular remedy.5 Any lowering of the standard laid down by Article 35 would
effectively side-line the Irish courts and set a precedent which would threaten the
relevance of the domestic legal systems in each of the Member States.
Member States Have Sovereignty to Protect the Right to Life
7. Ireland’s sovereign right to determine when life begins and to determine
the appropriate protections therein is based on the paramount importance of the
right to life affirmed in Article 2, which outweighs other Convention rights. This
Court recognised that other rights, such as the right to privacy and bodily integrity
within the context of pregnancy, are not absolute and must be analysed in
conjunction with the rights of the unborn to life and the rights of States to
determine their own definition of when life begins and how to protect unborn
children as a result.6
8. Ireland’s decision to protect the right to life deserves special deference
both because of its longevity and its status as not merely a statute but a provision
of the Irish Constitution, ratified overwhelmingly by the people of Ireland
themselves. The brief of the Pro-Life Campaign provides some of the historical
details of Ireland’s abortion restrictions. The Irish People’s closely held moral
and cultural belief in favour of the right to life has been echoed and fortified time
and again by the people, its courts, and legislature of the Republic of Ireland.
Their re-affirmation of the right to life for unborn children has recurred despite
numerous challenges stemming primarily from special interest groups.
9. Ireland’s abortion restrictions exist to bring equality to the rights of the
unborn person and the rights of the mother, by recognising that the fundamental
right to life takes primacy over all other rights. The most basic and fundamental
building block of the State is the individual, and therefore human beings at all
stages of development are worthy of the highest legal protection. Personal rights
can only exist because a human being exists from the moment of conception.
10. This primacy of the right to life is internationally recognised by perhaps
the greatest human rights document, the Universal Declaration of Human Rights,
4 D. v. Ireland, op. cit. § 98.
5 Cf. application No. 1488/62 – X v. Belgium, Collection of Decisions, Vol. 13, p. 93, 96
6 ECHR, Vo v. France, Application No. 53924/00, Judgment of 8/07/2004, § 80.
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invoked in the preamble of the Convention, which in Article 3 states that the right
to life is inalienable and extends to all members of the human family. The right to
protection of the unborn is also a foundational component of the United Nations
Convention on the Rights of the Child (UNCRC) to which Ireland is signatory.7
Under the UNCRC the child has the right to life, Parties are obliged to ensure
their survival “to the maximum extent possible,” and the child deserves special
care and legal protection “before as well as after birth.”8 Capital punishment for
pregnant women is rejected by the Universal Declaration as well as other
international documents, as a means of protecting the innocent child’s life.9
11. The principle of respect for national sovereignty, and not the erosion
thereof, forms the basis for Convention rights themselves, because those rights
stemmed from the treaty obligations undertaken by the High Contracting parties.
For any organ of the Council of Europe to hold that Ireland’s laws protecting life
must be liberalised would create a new Convention right to which Ireland never
acceded, and would place obligations on Ireland to which it never became party.
12. The Irish government has always taken the position that its participation in
the European political unification would not impact Article 40.3.3’s equal
protection of the right to life of mother and child. Protocol no. 35 on Article
40.3.3, annexed to the Treaty on European Union and the Treaty on the
Functioning of the European Union, ensures that “Nothing in the Treaties . . . shall
affect the application in Ireland of Article 40.3.3 of the Constitution of Ireland.”
Likewise, the Protocol on Article 40.3.3 annexed to the Treaty establishing a
Constitution for Europe states that “Nothing in the . . . Treaties or Acts . . . shall
affect the application in Ireland of Article 40.3.3 of the Constitution of Ireland.”
This position has been held consistently and affirmed by the Member States.
13. The Commission, before its disbandment, held that the foetus enjoys a
certain protection under the first sentence of Article 2 of the European Convention
of Human Rights.10 Article 2 provides a certain minimum level of protection for
the unborn.11 Even if the Court does not interpret Article 2 as a mandate to protect
the unborn, Article 2 still gives Member States the option to protect the unborn.
Indeed, a great measure of deference must be shown to Member States in
determining the extent of that protection.12 Parties to the convention are free and
encouraged to provide a higher level of protection of human rights in their own
national legislation, as recognised, for example, by Article 53.13 The protection of
7 United Nations Convention on the Rights of the Child, 20 Nov. 1989, 1577 U.N.T.S. 2.
8 Id. at Preamble, Art. 3(1), Art. 6(1).
9 Universal Declaration of Human Rights ***; International Covenant on Civil and Political Rights
1966 at Article 6(5) and travaux préparatoires.;
10 ECHR, H. v. Norway, Application. No. 17004/90, Admissibility decision of 19/05/1990.
11 ECHR, H. v. Norway, Application. No. 17004/90, Admissibility decision of 19/05/1990.
12 See Vo v. France.
13 Article 53 – Safeguard for existing human rights: Nothing in this Convention shall be construed
as limiting or derogating from any of the human rights and fundamental freedoms which may be
4
life from its beginning in Article 40.3.3 of the Irish Constitution simply
constitutes a higher level of implementation of Article 2.
14. This Court has found it particularly “inappropriate” to impose its moral
views on Member States concerning when to protect the right to life:
…it is not only legally difficult to seek harmonisation of national laws at the Community
level, but because of lack of consensus, it would be inappropriate to impose one exclusive
moral code . . . . the issue of when the right to life begins comes within the margin of
appreciation which the Court generally considers that States should enjoy in this sphere…
[and] the issue of such protection has not been resolved within the majority of the
Contracting States themselves . . . [and] there is no European consensus on the scientific
and legal definition of the beginning of life.14
The Constitutional Court of Poland, for example, has noted the central importance
that protection for the unborn plays in their legal system.15 Such weighty views
adopted by the people in Member States deserve great deference by this Court.
15. With respect to the State’s positive obligations in the provision of health
care, the Court has stated that an issue may arise under Article 2 where it is shown
that the authorities of a Contracting State put an individual’s life at risk through
the denial of health care which they have undertaken to make available to the
population generally.16 The provision of abortion within Ireland does not meet the
requirement to be considered part of a State’s positive obligations under Article 2.
16. There is no negative component in Article 2 requiring a State deny the
right to life to unborn children in order to vindicate the right to life of women. An
Article 2 claim to expand abortion cannot be considered if it raises no separate
issue from an Article 3 claim of torture or inhuman treatment.17 Moreover, Ireland
does not diminish the right to life of women—it gives full and equal treatment to
their and their children’s right to life. And the unborn’s right to life as understood
by Ireland allows abortive actions to save the lives of women.
17. Using Article 2 to require abortion in Ireland would be tantamount to
constricting the right to life by prohibiting states from recognising that right in the
unborn, while creating a diametrically opposed right to kill life, the right to abort.
The Court, in the context of the euthanasia issue, already determined that the
scope of Article 2 does not reach so far:
The consistent emphasis in all the cases before the Court has been the obligation of the
State to protect life. The Court is not persuaded that “the right to life” guaranteed in
ensured under the laws of any High Contracting Party or under any other agreement to which it is
a Party.
14 Vo v. France, op. cit., § 82.
15 Polish Abortion Case, Constitutional Court of Poland, OTK Z.U. z.r. 1997, Nr. 2, 19.
16 See Cyprus v Turkey [GC], no. 25781/94, § 219, ECHR 2001-IV.
17 See Öcalan v Turkey, no 46221/99, 12 March 2003 and D v the United Kingdom (no 3024/96
judgment of 2 May 1997, Reports 1997-III).
5
Article 2 can be interpreted as involving a negative aspect. While, for example in the
context of Article 11 of the Convention, the freedom of association has been found to
involve not only a right to join an association but a corresponding right not to be forced to
join an association, the Court observes that the notion of a freedom implies some measure
of choice as to its exercise […]. Article 2 of the Convention is phrased in different terms.
It is unconcerned with issues to do with the quality of living or what a person chooses to
do with his or her life. To the extent that these aspects are recognised as so fundamental
to the human condition that they require protection from State interference, they may be
reflected in the rights guaranteed by other Articles of the Convention, or in other
international human rights instruments. Article 2 cannot, without a distortion of language,
be interpreted as conferring the diametrically opposite right, namely a right to die.18
18. Ireland has decided to be inclusive rather than exclusive, by recognising
human rights at life’s beginning and with equal fullness in adults, including
women. This choice by the people of Ireland is not a denial of rights. Rather it is
the most fundamental kind of choice that a Member State could make that is
deserving of deference from the Court. Convention law does not impose rigid
standards for requirements for Member States on moral questions. It sets certain
minimum standards for the protection of fundamental human rights and gives a
wide margin of discretion to States, depending on the nature of the right, on the
nature of the issues and the importance of the issues at stake, and on the existence
or absence of consensus or international law on the topic. This Court has held:
“Article 2 ranks as one of the most fundamental provisions in the Convention—
indeed one which, in peacetime, admits of no derogation under Article 15.
Together with Article 3 of the Convention [the prohibition of torture], it also
enshrines one of the basic values of the democratic societies making up the
Council of Europe.”19
19. While acknowledging the lack of consensus on the nature and status of the
unborn, the Court has none-the-less observed: “that the embryo/foetus belongs to
the human race.”20 In the belief that belonging to the human race is the basis of
human rights, the people of Ireland have established legal protection for the child
before birth. Far from violating the terms of the Convention, Ireland’s regulation
of abortion is wholly compatible with the UDHR’s defence of the rights of all
sections of the human family. If it is within the margin of appreciation for the
Irish people to decide when life begins, but they are not free to act upon their
decision in the way in which they regulate abortion, then this Court will place
itself in the position of judging the matter for all Contracting States.
Ireland Does Not Interfere with Article 8 Bodily Integrity and Privacy
20. Just as Article 2 does not provide a right to abortion, Ireland’s restrictions
on abortion cannot be said to unduly interfere with Article 8’s right to integrity
18 ECHR, Pretty v. the United Kingdom, Application No. 2346/02. Judgment of 29/04/2002, § 39.
19 ECHR, Case of McCann v. the United Kingdom , Application No. 18984/91, Judgment of
27/09/1995 (Grand Chamber), § 147.
20 Vo v France, op. cit., § 84
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over women’s bodies and right to privacy. Instead, Ireland’s laws actually protect
the life and health of women. Last year, the Supreme Court of the United States
recognised that “it seems unexceptionable to conclude some women come to
regret their choice to abort the infant life they once created and sustained. Severe
depression and loss of esteem can follow.”21 The court cited a brief filed on
behalf of a multitude of women who had undergone abortion and who had
experienced deep emotional pain and other complications. As demonstrated
below, abortion has serious negative effects that must also be considered in
deciding whether Ireland’s laws protect women.
21. As this Court recognised when analysing Article 2, the right to privacy and
bodily integrity within the context of pregnancy is not absolute, nor is pregnancy a
purely private matter. The right must be analysed in conjunction with the rights
of the unborn to life and the rights of States to determine their own definition of
when to begin protecting the right to life.22 Because Ireland’s law is inclusive in
recognising the right to life of the unborn as equal to the rights of the mother, then
deference to Ireland’s decision outweighs any alleged conflict with the interests of
women to health, privacy and bodily integrity.
22. The first prong in determining whether a violation of the Convention has
occurred with relation to Article 8 is whether Ireland’s restriction of abortion is
prescribed by law, is precise enough and reasonably foresees its consequences,
and provides adequate safeguards against arbitrary interference with respective
substantive rights.23 Second, Ireland’s laws must pursue a legitimate aim. Third,
Ireland’s laws should be necessary in a democratic society and meet a pressing
social need whilst at the same time remaining proportionate to the legitimate aim
pursued.24 The laws must be based on just reasons which are relevant,
sufficient,25 and concrete.26 The restriction must be proportionate to the aim
pursued, proportionality being the achievement of a fair balance between the
various conflicting interests.27 Restrictions on rights guaranteed by the European
Convention of Human Rights must be narrowly tailored, must be adopted in the
interests of public and social life as well as the rights of other people within
society.28 In determining whether the restrictions on abortion in Ireland are lawful
21 Gonzales v. Carhart, 550 U.S. 124, 127 Sup. Ct. 1610, 1634 (2007).
22 Vo v. France, op. cit. § 80.
23 ECHR, Huvig v. France, Judgment of 24/04/1990, Series A no. 176-B § 27; ECHR, Kruslin v.
France, Judgment of 24/04/1990, Series A no. 176-A § 36.
24 ECHR, Sunday Times v. the United Kingdom, Application No. 6538/74, Judgment of
26/04/1979, § 63 et seq.
25 ECHR, 22/10/1981, Dudgeon v. the United Kingdom, Series A No. 45, § 51ff.
26 See: Article 9 of the European Convention of Human Rights: Freedom of Thought, Conscience
and Religion, Human Rights Files, No. 20, Council of Europe Publishing, 2005. p. 47.
27 Id., See also Handyside v. the United Kingdom, op. cit., § 49; Dudgeon v. The United Kingdom,
op. cit., § 60.
28 See: F. Sudre, Droit International et Europeen des droits de l’homme, PUF, Droit fundamental,
1999, p. 108.
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under Convention law, the Court must look to the interests involved and the facts
of the case as a whole.
23. Because Ireland’s restrictions on abortion are prescribed by law, they
deserve a great amount of deference. This Court has deemed that national
authorities must be able to judge the circumstances warranting restrictions on
guaranteed rights.29 In the “information cases” this Court also observed that the
protections afforded to the unborn both serve a legitimate aim and are
proportionally tailored and necessary in a democratic society.30
24. Ireland’s restrictions on abortion are precise in their formulation,
reasonable in accommodating threats to the mother’s life, and uniform rather than
arbitrary in their application. The reasonableness of Ireland’s law is substantiated
by its protection for the mother’s life where the risk of death is both real and
substantial. This protection has been clearly defined in the case-law of the
Republic of Ireland, foremost in the X case,31 and prior to the adoption of the
Eighth Amendment, in the McGee case.32
25. The adoption of these principles has also been codified in precise terms by
the Medical Council’s guidelines: “The Council recognises that termination of
pregnancy can occur when there is real and substantial risk to the life of the
mother . . . .”33 The Council further adheres to the following views:
In current obstetrical practice rare complications can arise where therapeutic intervention
is required at a stage in pregnancy when there will be little or no prospect for the survival
of the baby, due to extreme immaturity. In these exceptional situations failure to intervene
may result in the death of both mother and baby. We consider that there is a fundamental
difference between abortion carried out with the intention of taking the life of the baby,
for example for social reasons, and the unavoidable death of the baby resulting from
essential treatment to protect the life of the mother.34
26. Ireland’s protection for a mother’s life is not impermissibly imprecise just
because they rely to some extent on a doctor’s judgment that the woman’s life is
at risk. Medical advice ultimately depends upon the exercise of clinical judgment
rather than legislation. It is not possible to provide universally applicable rules
which prescribe for every case, nor does this Court take such an unreasonable
29 Jean-Francois Renucci, Droit Europeen des droits de l’homme, 3rd ed., LGDJ/Montchrestien
(2002), p. 329.
30 ECHR, Case of Open Door and Dublin Well Woman v. Ireland, Application no. 14234/88 and
14235/88, Judgment of 29/10/1992, § 63.
31 A.G. v. X (1992), IESC 1.
32 McGee v. the Attorney General [1974] IR 284.
33 Medical Council, A Guide to Ethical Conduct and Behaviour, § 24.6 (The Child in Utero).
34 Id., Appendix C(2), Written submission of the Institute of Obstetricians and Gynaecologists to
the All-Party Oireachtas Committee on the Constitution as contained in its Fifth Progress Report,
Appendix IV, page A407.
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approach.35 The Court has acknowledged that it is not its function to question
clinical judgment as regards the seriousness of medical conditions or
appropriateness of the treatment proposed.36 Moreover, advances in medicine
mean that there are no specific circumstances in which the life of a pregnant
woman may only be saved by a deliberate act intended to end the life of her
unborn child, that is, by abortion.
27. Ireland’s laws are necessary for protecting the right to life of the unborn,
they are supported by just and concrete reasons, and they are proportionate in
balancing various interests. In particular, the Court should consider the positive
effects on the health of women that the laws create, and conversely the negative
effects on women that result from abortion itself.
28. The privacy right in Article 8 itself states that a government’s protection of
health and morals is a legitimate aim. On this point the Court has commented:
“that the protection afforded under Irish law to the right to life of the unborn is based on
profound moral values concerning the nature of life which were reflected in the stance of
the majority of the Irish people against abortion as expressed in the 1983 referendum. The
restriction thus pursued the legitimate aim of the protection of morals of which the
protection in Ireland of the right to life of the unborn is one aspect.”37
More appropriately, the restrictions also serve the legitimate aim of protection for
the rights and freedoms of others, which under Irish law includes the unborn.
29. This Court has recognised extensive exceptions to the right to privacy,
with regard to physical integrity,38 sexual activity39 and gender rights.40 The
protections afforded by Ireland to the unborn provide the most compelling aim of
all, and should be afforded the deference called for in the Vo decision.
30. Restrictions on abortion are far from incompatible with the requirements
of a democratic society. In addition to Ireland, 68 countries worldwide prohibit
abortion entirely or allow it only to save the mother’s life. This includes Malta,
Monaco, San Marino and Andorra which are also signatories to the Convention.
There is no right to abortion recognised in international law or treaty, including
treaties to which Ireland is bound. The Convention in this respect is similar to
35 Sunday Times v the United Kingdom (App. no. 6538/74, 26 April 1979), para. 49. The Court
also pointed out in Vo that the Convention does not define the term “everyone” (“toute personne”).
The Convention cannot possibly require a level of precision that it fails to meet itself.
36 Glass v the United Kingdom, no. 61827/00, § 87, ECHR 2004-II, mutatis mutandis.
37 ECHR, Case of Open Door and Dublin Well Woman v. Ireland, Application no. 14234/88 and
14235/88, Judgment of 29/10/1992, § 63.
38 See e.g.: ECHR, McFeely v. the United Kingdom, Application No. 8317/78, Judgment of
15/05/1980.
39 See e.g.: ECHR, ADT v. the United Kingdom, Judgment of 31/07/2000.
40 See e.g.: ECHR, Rees v. the United Kingdom, Judgment of 17/10/1986; ECHR, Cossey v. the
United Kingdom, Judgment of 27/09/1990; ECHR, Sheffield and Horsham v. the United
Kingdom, Judgment of 30/07/1998.
9
various treaties and documents that protect the right to life, contain no explicit
protection of abortion, and were ratified by countries that restrict abortion.41
Therefore these documents and the signatories cannot be characterised as
supporting an international right to abortion.
31. On the contrary, documents like the UNCRC (discussed above) and the
American Convention on Human Rights contain explicit protections for the right
to life from the moment of conception.42 Even the Convention on the Elimination
of All Forms of Discrimination against Women does not mention abortion, much
less does it create a right thereto. Pro-abortion groups cannot find an international
right to abortion, so they are forced to cite only non-binding, unratified
interpretations by unelected compliance committees. These carry no weight.
32. In addition to aiming at protection of unborn children, Ireland’s laws
represent a protection for women. A fair consideration of this issue must not
include the one-sided assumption that legal abortion helps the health of women.
In fact, evidence shows that Ireland’s laws against abortion enhance rather than
undermine the overall right that women have to bodily integrity and privacy.
33. First, the pro-abortion argument in favour of the health, bodily integrity,
and privacy of women, begs the question of which women’s health counts in the
calculus. Somewhat more than half of the unborn children killed in abortion are
women. Moreover, all over the world and increasingly in Western nations, female
unborn children are selected for abortion precisely because they are women and
not men, in a practice that the UNFPA calls “female infanticide.”43
34. Second, as discussed in the brief of the Pro-Life Campaign, Ireland’s
maternal mortality rate is the lowest in Europe. Meanwhile, the maternal
mortality rate in the UK where abortion laws are very liberal is three times
higher.44 This is no tangential statistic. If Ireland is so successful at protecting
women’s health, all the more should it receive this Court’s deference on the
question of whether it is violating Convention rights to women’s bodily integrity,
life, and health.
35. Third, there is ample scientific evidence showing that abortion has serious
and negative effects on women’s physical and emotional health, which negative
41 See e.g.: the Universal Declaration of Human Rights; the United Nations Convention on the
Rights of the Child; the International Covenant on Civil and Political Rights; the International
Covenant on Economic, Social and Cultural Rights; the
42 See supra para. 5; American Convention on Human Rights, O.A.S.Treaty Series No. 36, 1144
U.N.T.S. 123 (22 Nov. 1969), available at http://www.oas.org/juridico/English/treaties/b-32.html .
43 See Proceedings of the National Academy of Sciences of the U.S., “Son-biased sex ratios in the
2000 United States Census,” 105 (15) PNAS 5681-82 (15 Apr. 2008), abstract available at
http://www.pnas.org/content/105/15/5681.abstract; UNFPA, “Programme of Action of the
International Conference on Population and Development” (2005), available at
http://www.unfpa.org/icpd/icpd-programme.cfm .
44 See http://www.irishhealth.com/index.html?level=4&id=13789 .
10
effects Ireland is diminishing by not allowing the procedure. Just a few months
ago, the Royal College of Psychiatrists in the UK warned that abortion can lead to
mental illness, and advised that abortion should not be allowed without first
counselling women on the risks that abortion poses to mental health.45 A 25-year
longitudinal study in New Zealand found that young women “having an abortion
had elevated rates of subsequent mental health problems including depression,
anxiety, suicidal behaviours and substance use disorders. This association
persisted after adjustment for confounding factors.”46
36. Ireland’s abortion laws also protect women’s physical health. Advocates
and even doctors who favour abortion commonly assert that childbirth is more
dangerous than abortion. However, this assumption was challenged by an
international study in 2004 involving researchers from France, Finland, and the
United States, including researchers from the U.S. Centers for Disease Control.
The study showed that the number of deaths previously attributed to abortion was
artificially low because death certificates were not being correlated with women’s
pregnancy history. In other words, deaths from abortion were not being attributed
to abortion. A correct assessment of the data showed instead that the death rate
after abortion was three times higher in Finland, and 1.6 to 2 times higher in
California, than the death rate from childbirth.47 Moreover, women who had
aborted were six times more likely to die from violent causes. From these studies,
it is apparently no coincidence that Ireland has both the lowest maternal mortality
rate in Europe while limiting most abortions. And these studies deal only with
maternal death: 10% of abortions cause physical complications whether lifethreatening
or not, including incomplete abortion, infection, perforation of the
uterus, infertility and other harms.48
37. Finally, abortion causes an indisputable adverse effect on subsequent
pregnancies and a risk to the health of babies born in those pregnancies. Many
studies demonstrate higher rates of preterm and low birth weight deliveries in
45 See Royal College of Psychiatrists, “Position Statement on Women’s Mental Health in Relation
to Induced Abortion.” 14 Mar. 2008, available at
http://www.rcpsych.ac.uk/members/currentissues/mentalhealthandabortion.aspx .
46 See Fergusson, D.M., et al., “Abortion in young women and subsequent mental health,” 47 (1) J.
Child Psychol. & Psychiatry 16-24 (Jan. 2006), abstract available at http://www.ncbi.nlm.nih.gov/
pubmed/16405636?dopt=Abstract .
47 See Gissler M., et al. “Pregnancy-associated mortality after birth, spontaneous abortion or
induced abortion in Finland, 1987-2000,” 190 Am J. Ob. Gyn. 422-27 (2004), abstract available
at http://www.ajog.org/article/S0002-9378(03)01136-0/abstract?refuid=S0002-9378(04)00813-
0&refissn=0002-9378 ; Gissler, Mika, et al., “Methods for identifying pregnancy-associated
deaths: population-based data from Finland 1987–2000,” 5 Nov. 2004, abstract available at
http://www3.interscience.wiley.com/journal/118774825/abstract ; Reardon D.C., et al., “Deaths
associated with abortion compared to childbirth: a review of new and old data and the medical and
legal implications,” 20(2) J. Contemporary Health L. & Policy 279‑327 (2004), available at
http://www.afterabortion.org/research/DeathsAssocWithAbortionJCHLP.pdf .
48 Frank, et.al., “Induced Abortion Operations and Their Early Sequelae,” 35(273) J. Royal College
of Gen. Prac.175-80 (Apr. 1985), available at
http://www.pubmedcentral.nih.gov/articlerender.fcgi?tool=pmcentrez&artid=1960135 .
11
women who have had abortions. One recent review paper from the United States
concluded that 31.5% of preterm births are attributable to a history of induced
abortion, and that the initial neonatal hospital costs for treating preterm births
until release from the hospital cost the country over $1.2 billion per year. That
cost averages out to about $1000 per abortion, and does not include expenses after
release from the hospital.49
38. Special interest groups who argue in favour of abortion frequently
disregard the evidence showing that abortion harms women. The researchers
cited above were not so dismissive—they looked at decades of evidence on both
sides of the debate and concluded that abortion is associated with serious harms.
But at the very least, this Court should acknowledge that documented evidence
exists showing abortion’s harms, and the Court should not credit merely the
assumptions of abortion advocates that abortion is always a choice that favours
women’s health. Member States have the freedom to investigate the evidence and
make their own policy determination. Especially since Ireland’s maternal
mortality rate is second to none, this Court should defer to Ireland’s judgment on
how best to protect the health, bodily integrity, and privacy of women.
39. Ireland’s decision to protect the right to life also outweighs any economic
interests that are commonly proposed in favour of allowing abortion. The Polish
Constitutional Court has noted that whereas economic circumstances are variable
and changeable, the termination of pregnancy is irreversible.50 Unquestionably
therefore, the right to life takes precedence over economic interests and
Respondent Ireland has set forth a proportionate restriction on applicant’s Article
8 right to privacy in protecting human life. Furthermore, neither the European
Union nor the Council of Europe requires subsidisation of abortion procedures
domestically or abroad.
40. Ireland’s exception for travel abroad for procurement of an abortion does
not defeat the legitimacy and necessity of its abortion laws. First and foremost,
the exception is part of Ireland’s entire system of laws which deserve strong
deference to a Member State’s sovereignty. Second, an exception to
accommodate women’s interests cannot be used to argue that abortion must be
even more widely available, because the exception is arguably required by other
European law. The European Court of Justice in the Grogan case determined that
abortion cannot be withheld from Community Members wishing to avail
themselves of the internal market, and under European Community law, abortion
in the United Kingdom is viewed as a service within the meaning of Article 60 of
49 Calhoun B, et al., “Cost consequences of induced abortion as an attributable risk for preterm
birth and its impact on informed consent,” 52 J. Repro. Med. 929-37 (Oct. 2007), abstract
available at http://www.reproductivemedicine.com/toc/auto_abstract.php?id=23283 ; see also
Rooney B., “Induced Abortion and Risk of Later Premature Births,” 8 J. Am. Phys. & Surgeons
46-49 (Summer 2003), available at http://www.jpands.org/vol8no2/rooney.pdf .
50 Polish Abortion Case, Constitutional Court of Poland, OTK Z.U. z.r. 1997, Nr. 2, 23.
12
the EEC treaty.51 Therefore, using the travel exception to mandate that abortion
be provided in Ireland gives Member States a single Hobson’s choice: they must
allow abortion, because they cannot restrict it with a travel exception and they
cannot restrict it without one. The Court would also be forcing Ireland to provide
or subsidise all services provided for abroad which happen to be cost prohibitive
to Irish citizens. This result is incompatible with the Court’s previous decisions
that allow States to set their own abortion policy.
41. The Court would be significantly expanding its precedent if it applied the
holding from Tysiac v Poland to the laws of Ireland. In that case the Court
stressed that “it is not the Court’s task in the present case to examine whether the
Convention guarantees a right to have an abortion.”52 Moreover, the laws of
Ireland are substantially different than the relevant considerations from Polish law
that the Court used in Tysiac. Poland allows abortion: (1) during all nine months
of pregnancy if “pregnancy endangers the mother’s life or health”; (2) until foetal
viability if the child has a severe disability; and (3) during the first twelve weeks
of pregnancy if “there are strong grounds for believing that the pregnancy is a
result of a criminal act.”53 This Court therefore stated that “[o]nce the
legislature decides to allow abortion, it must not structure its legal framework in a
way which would limit real possibilities to obtain it.”54 (Emphasis added.) The
Court was also concerned that laws against abortion had a “chilling effect” on
doctors who might have approved an abortion for health reasons.55
42. The premise behind Tysiac’s rule is not present in Irish law. Because
Poland allows abortion to protect “health,” and also in the cases of rape or foetal
deformity, the Court concluded that Polish law basically recognises the legitimacy
of abortion in principle and practice. Even if the mother’s life is not at stake, the
unborn child’s life can be ended in various circumstances in Poland. In contrast,
Ireland’s “exception” for abortion when the mother’s life is threatened is not a
recognition of the legitimacy of abortion. Instead, Ireland’s Constitution embodies
a rule that attempts to give equal treatment for the right to life of the mother and
child, and actions that may end the life of the child can only occur if needed to
save the mother’s life. Moreover, there is no chilling effect on doctors in Ireland
for this Court to remedy to protect legal abortions in Ireland, because Ireland does
not allow legal abortions by a doctor’s approval or otherwise, except where a
mother’s life is threatened, in which case the standards are both precise and are
freely administered.
43. For this reason, Ireland’s law is not subject to the rule from Tysiac. No
right can trump the right to life. If a State were to allow abortion for reasons less
51 Case C-159/90, The Society for the Protection of Unborn Children Ireland Ltd. V. Stephen
Grogan and Others, European Court Reports 1991, p. I-04685.
52 Application no. 5410/03, Final 24/09/2007, para. 104.
53 Id. para. 38.
54 Id. para. 116.
55 Id.
13
significant than to save a mother’s life, then a woman’s right to bodily integrity
might have more weight due to the lack of a counterbalance in the rights attributed
to the child.56 But Irish law does not “allow abortion” in this sense. The law states
the full equality of the child’s and mother’s right to life, and only notes that where
the mother’s life is at risk through no one’s fault, an act taken to save her will not
be punished. In doing so, the law does not intrinsically reject the rights of the
child. Instead, Ireland simply makes its best attempt to treat the lives equally. To
apply Tysiac here would essentially force all Member States to legalise abortion.
Ireland’s Laws Do Not Violate Article 14 Discrimination
44. Restriction of abortion cannot be regarded as discrimination against
women under Article 14. First, such a claim would be an actio popularis, which is
an unjusticiable claim under Convention law. Second, Article 14 only
complements the substantive provisions of the Convention. As access to abortion
is not a right guaranteed by the Convention, Article 14 is not applicable. Third,
the Court recognises exceptions to Article 14 where they are necessary to protect
a competing Convention right—here, Ireland’s has the right to protect life.57
45. There is no merit to the argument that abortion restrictions discriminate
against women since only women become pregnant. The basis of Article 14 is
that any differential treatment by the State of individuals in similar situations must
have a reasonable and objective justification.58 Men and women are not in similar
situations with regard to pregnancy, and the law is not an appropriate means to
redress the physiological and reproductive differences between men and women
by declaring abortion restrictions to constitute discrimination.
46. The logic of a discrimination claim goes obviously too far, excluding
even laws against late term abortions. The Convention does not require such a
56 We would still argue that the Court should not scrutinise a State’s abortion policy decision even
if public debate has reached a compromise that allows some abortion. If abortion is legal only
after certain prerequisites are met, such as a doctor’s determination, it does not follow that the
State has a duty to meet those prerequisites for women. On the contrary, such a policy itself exists
to protect the unborn to some degree, and that political decision deserves deference by this Court.
Furthermore, doctors should be free not to recommend abortion in particular cases. If a doctor
refuses to recommend an abortion, nothing in the Convention requires him to change his mind just
because a woman has decided she wants one to assist her health and privacy. Nor does the
Convention require the State to scrutinise a medical decision by some appeal process or to find
another doctor who is willing to recommend abortion. Such requirements incorrectly presume not
only that there is a right to legal abortion, but that there is a right that forces States to bring a
woman unimpeded all the way to the abortion procedure. This Court need not and should not
extend its precedent to such an extreme.
57 Cf. ECHR, Case of East African Asians v. the United Kingdom, Comm. Report 1973
(unpublished).
58 See, e.g., ECHR, Marckx v. Belgium, Application No. 6833/74, Judgment of 13/06/1979.
14
revolutionary mandate. Instead, the Court affords Member States a wide margin
of appreciation regarding discrimination claims.59
47. Nor is there evidence that the laws are applied selectively. The abortion
prohibition in Ireland is both uniform and even-handed, applying to unborn
children without reference to any discrimination against women. Notably, the
laws protect unborn women from destruction, and their interests must also be
considered. Vindicating a discrimination claim to mandate abortion would
necessarily require a concomitant discrimination against unborn children.
Ireland’s Laws Do Not Violate Article 3 Torture or Degrading Treatment
48. Ireland’s restriction on abortion cannot be precluded under Article 3’s
protection against torture and degrading treatment without changing the very
definition of that protection to make it almost unrecognisable. Perhaps most
noteworthy, the Court found no Article 3 violation in Tysiac, where the applicant
complained that laws against abortion prevented her from getting an abortion to
prevent the deterioration of her vision.60 Article 3 must be construed in harmony
with Article 2, which the Court has accepted in principle allows for restrictions on
the availability of abortion.61
49. The definition of torture, inhuman or degrading treatment has several
necessary elements: the infliction of severe mental or physical pain; the
intentional or deliberate infliction of the pain; and the pursuit of a specific purpose
such as gaining information, punishment or intimidation.62 This Court has added
that the notion of inhuman or degrading treatment, while a lesser standard than
that of torture, at least requires deliberately causing severe suffering, mental or
physical, which in the particular situation is unjustifiable.63 The European
Commission held that the standard of proof for Article 3 claims is proof beyond a
reasonable doubt.64 The Court has further held that the object of the treatment
complained of must have as its object, the purpose of humiliation and debasement
of the applicants.65
50. Several key questions are important in considering whether Ireland’s
abortion law could satisfy these standards. First, abortion is an elective
59 See: ECHR, Lithgow and Others v. the United Kingdom, Application Nos. 9006/80, 9262/81,
9263/81, 9265/81, 9266/81, 9313/81, 9405/1981, Judgment of 08/07/1986.
60 Tysiac, para. 65-66.
61 See Open Door Counselling and Dublin Well Women v Ireland no 14234/88; 14235/88
judgment of 29 October 1992, Series A no 246 para 68.
62 See The United Nations Convention Against Torture (26 June 1987). at Article 1. This Court,
has endorsed in part the definition utilised in the Convention. See, particularly, ECHR, Akkoç v.
Turkey, Judgment of 10/12/2000, §115; ECHR, Salman v. Turkey, Judgment of 27/07/2000, §114.
63 ECHR, “The Greek Case” (1969), 12 Yearbook ECHR 1.
64 Id., p. 196, § 30.
65 ECHR, Ranninen v. Finalnd, Judgment of 16/12/1997, ECHR 1997-VIII, p. 2821-22, § 55.
15
procedure, so Ireland’s laws cannot be considered denial of essential health care.
Nor does Ireland threaten pregnant women with detention or expulsion.
51. Second, Ireland allows abortions to save the mother’s life and does not
prevent women from going to the United Kingdom to procure abortions, while
medical personnel in Ireland are committed to providing abortion aftercare.66
These factors take away any of the remotely possible grounds to show severity
and intensity. A woman who fails to pursue those options based on her own
subjective motivation or circumstances cannot allege a tortuous action by Ireland.
52. Third, to show that Ireland has the requisite intent to commit torture,
inhuman or degrading treatment, Irish authorities would at least need to be aware
that a particular woman had or is seeking an abortion. Allowing a mere omission
to constitute torture or inhuman treatment would constitute a slippery slope that
inalterably undermines the Convention and its purposes.
Conclusion
53. The above named parties hereby plead before this esteemed Court to
recognise the primacy of the right to life and the authority that people in the
Member States have to extend it to unborn children. Ireland’s laws legitimately
and reasonably protect both the unborn and women without violating Convention
rights.
66 The Irish Medical Council’s Guide to Ethical Conduct and Behaviour itself makes absolutely
clear that: “we recognise our responsibility to provide aftercare for women who decide to leave the
State for termination of pregnancy. We recommend that full support and follow up services be
made available for all women whose pregnancies have been terminated, whatever the
circumstances.” Medical Council, A Guide to Ethical Conduct and Behaviour, 6th Edition (2004),
§ 2.5.

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