European Court Finds Ireland’s Abortion Law Violates Rights of Pregnant Woman with Cancer

Jodi Jacobson

In a victory for Irish women, and to some degree women everywhere, the European Court of Human Rights today ruled that Ireland's strict law forbidding abortions even in dire circumstances violated the right to life of a pregnant woman suffering from cancer.

In a victory for Irish women, and to some degree women everywhere, the European Court of Human Rights today ruled that Ireland’s strict law forbidding abortions even in dire circumstances violated the right to life of a pregnant woman suffering from cancer. The ruling comes the same week that the Roman Catholic Diocese of Phoenix, Arizona, castigated a Catholic hospital for allowing an abortion that saved a woman’s life.

In Ireland, according to a Human Rights Watch (HRW) report, “abortion is legally restricted in almost all circumstances, with potential penalties of penal servitude for life for both patients and service providers, except where the pregnant woman’s life is in danger.”

There is, however, notes HRW:

little legal and policy guidance on when, specifically, an abortion might be legally performed within Ireland. As a result, some doctors are reluctant even to provide pre-natal screening for severe fetal abnormalities, and very few – if any – women have access to legal abortions at home.

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The specific case heard by the court, based in Strasbourg, France, relates to a decision by Ireland’s Supreme Court in 1992 requiring Ireland to clarify the conditions under which a legal abortion might take place. 

The government, however, failed to act in response to the 1992 ruling. 

According to the Associated Press:

Ireland has resisted [clarifying its laws] despite a 1992 judgment from the Irish Supreme Court that said abortions should be legalized in Ireland in all cases where the woman’s life is endangered by continued pregnancy — including by a woman’s threats to commit suicide.”

Based on arguments heard in the current case, the 17 judges of the European court arrived at an 11-6 verdict charging that Ireland was wrong to keep the legal situation unclear and that the Irish government “had offered no credible explanation for its failure.”

The specific case in question was brought before the court in 2005 when, according to AP, “the Irish Family Planning Association took Ireland’s government to court on behalf of three women who had to travel overseas that year for abortions: an Irish woman who had four previous children placed in state care, an Irish woman who didn’t want to become a single mother, and a Lithuanian woman living in Ireland who was in remission from cancer.”

The judges said the first two women had failed to demonstrate that their pregnancies represented a sufficient risk to their health, but the Lithuanian woman had her right to life threatened. It ordered Ireland to pay her 15,000 euros ($20,000) in damages.

The woman, reported the New York Times:

[is] a Lithuanian who lived in Ireland and whose name was withheld in court documents, [and who] feared that her rare form of cancer might relapse during her pregnancy if she reduced her treatment, and that the fetus would be harmed if she did not. Her life was in danger, the court found, yet she was not provided access to abortion services in Ireland even though the “underlying constitutional right to an abortion in the case of a qualifying risk to life was not disputable.”

The judges, reported AP, lambasted Ireland’s defense claiming that the woman should have petitioned the Irish High Court for the right to have an abortion in Ireland. They said Irish doctors must be given clear legal guidance on the rules for deeming women eligible for abortions.

According to the judges:

“[Ireland’s failure] has resulted in a striking discordance between the theoretical right to a lawful abortion in Ireland on grounds of a relevant risk to a woman’s life, and the reality of its practical implementation,” the judges wrote.

As reported in the NYT, the court said “even those national guidelines [in existence] for how doctors are to approach the question of abortion are unclear to the point of being unhelpful.” “Against this background of substantial uncertainty,” the judges wrote in their decision, “the Court considers it evident that the criminal provisions of the 1861 Act [the original law on which Ireland’s abortion ban is based] would constitute a significant chilling factor for both women and doctors in the medical consultation process.”

While the court upheld broader restrictions on abortion in Ireland, it clearly underscored the need to clarify–and to prevent a “chilling effect” on doctors and patients as a result of–vague abortion laws and policies that effectively prohibit safe abortion even in cases where they are technically legal. 

The Irish judge on the panel, Mary Finlay Geoghegan, sided with that majority view, according to AP, which also noted that the judgement will “put Ireland under pressure to draft a law extending limited abortion rights to women whose pregnancies represent a potentially fatal threat to their own health.”

The 18-year delay has left the abortion rights of thousands of women in legal limbo, obliging many to travel overseas for the procedure rather than rely on Irish doctors fearful of being prosecuted.

The 1992 Irish Supreme Court case initially charging the government with the obligation to clarify its laws stemmed from a lawsuit brought by a 14-year-old rape victim who sought to travel abroad for an abortion.  The government tried to stop her, “arguing it could not facilitate an illegal act, even though she was threatening to commit suicide.”

According to AP:

The Irish Supreme Court ruled that traveling to obtain abortions abroad was legal, and Ireland itself should provide abortions in cases where a continued pregnancy would threaten the life of the woman. Ireland in 1992 passed a law permitting women the right to travel abroad for abortions.

Today, women in Ireland facing an unintended and untenable pregnancy effectively have three options. One is to travel abroad if they have or can find the money.  The other is to import drugs and attempt a do-it-yourself procedure. And the third is to be forced to carry a pregnancy to term and give birth, against their will.  Given these realities, even incremental progress on abortion rights in Ireland is considered a success.

AP notes that the reactions of women’s rights and health groups on the decision were universally positive:

The Irish Family Planning Association and an Irish lobbying group, Doctors for Choice, welcomed the verdict.

“[It] leaves no option available to the Irish state other than to legislate for abortion services in cases where a woman’s life is at risk,” said Niall Behan, head of the association.

“Doctors can feel vindicated today. For the first time we can feel confident about discussing abortion as an option for women in medical need without fearing prosecution,” said Dr. Mary Favier, director of Doctors for Choice.

The decision could have ramifications beyond Ireland.  Lack of clarity on abortion laws and lack of access to services needed in a timely manner denies women the right to life in many countries where abortions laws are generally restrictive but where ostensibly women can obtain an abortion if their lives or health are in danger.  This case may spark the necessary public discussion and in-country attention to obstacles to safe abortion care to further clarify laws and policies in countries where they remain cloudy.

Moreover, coming as it does when the Catholic Diocese of Phoenix itself seeks to deny women life-saving care, it further shines a light on the role of the Vatican and the hierarchy of the Catholic Church in denying women’s rights when a pregnancy threatens their lives or their health. 

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