(Jan. 4, 2011) On December 16, 2010, the office of the head of the government in Ireland issued a statement indicating that the government would study the issue of what steps the country needs to take in order to comply with a recent judgment of the European Court of Human Rights (ECHR) that found that Ireland's laws violated article 8 of the European Convention on Human Rights by not adequately ensuring the right of a complainant to seek an abortion to protect her own life. (Press Release, Department of the Taoiseach, Government Press Statement Re: Judgment of the European Court of Human Rights Delivered This Morning in the Case of A, B and C v Ireland (Dec. 16, 2010),
v_Ireland.html.) Article 8 of the Convention establishes the right of respect for family and private life. (Convention for the Protection of Human Rights and Fundamental Freedoms ECHR website (June 2010), http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B4575C9014916D7A
In reviewing three joined cases, the ECHR did not find that article 8 gives all women abortion rights. In fact, it found that there is no European Union rule as to when life begins and that the Member States can individually legislate to protect the life of the unborn. However, the ECHR, which sits in Strasbourg, did recognize that article 8 does give women rights to undergo medical procedures necessary to protect their lives. As the ECHR stated: “[p]reserving pre-natal life [is] an acceptable goal only when the health and well-being of the mother [are] given proportionate value.” (Case of A, B and C v. Ireland, ¶ 172, ECHR Portal (Dec. 16, 2010),
This finding was not inconsistent with Irish law. The right of a woman to seek an abortion when continued pregnancy constitutes a substantial risk to her health has been recognized by Irish courts since the 1990s as being guaranteed by article 40.3.3 of the Irish Constitution, which gives both the unborn child and pregnant women equal rights to life. (Ir. Const. 1937, Department of the Taoiseach [Prime Minister] website,
Anthem_Harp/Constitution_of_Ireland_2010.rtf (last visited Jan. 3, 2011).)
However, the Oireachtas [Ireland's Parliament] has never enacted legislation to amend the provision of the 150 year-old Offenses Against the Person Act that makes illegally procuring or causing a miscarriage a criminal offense that is punishable with life imprisonment. (Offenses Against the Person Act, 1861, 24 & 25 Vict. Ch. 100, s. 58). Therefore, physicians have been afraid to perform abortions to save the life of a woman, because of the possibility that they could later be charged with and convicted of performing an abortion that in the opinion of others was not absolutely necessary. The result has been that few abortions are performed in Ireland and an average of 5,000 Irish women have travelled to the United Kingdom to obtain abortions under that country's more liberal laws every year since 1980. (Gilbert Reilhac, European Rights Courts Faults Ireland on Abortion Ban REUTERS (Dec. 16, 2010), http://www.reuters.com/article/idUSTRE6BF27L20101216?feedType=RSS&sp
The Irish government had argued that complainant C could have petitioned the courts for permission to obtain an abortion to save her life. However, the ECHR did not find that such a procedure adequately protected her rights and, consequently, it ordered the government to pay complainant C €15,000 (about US$20,073) in respect of her non-pecuniary damages. (Case of A, B and C v. Ireland, supra.) This decision would seem to suggest that Ireland may be required to enact legislation that would allow a woman to have a life-saving abortion on the advice of physicians and that would also protect physicians from possible criminal prosecution when they are performing a medical procedure they consider necessary to protect the life of a pregnant woman.