The European Court of Human Rights’ ruling on Ireland’s abortion laws prompted a flurry of misleading headlines and inaccurate reporting. The Irish Times‘ headline said: “Irish abortion laws breach human rights, court rules,” and RTE led with “Human rights violated by abortion ban.” Even CNN chimed in with “Court condemns Irish ban on abortion.”
In fact, the court specifically ruled that Ireland’s abortion laws are compatible with the European Convention on Human Rights. It merely found that there should be a better procedure in place to enforce the existing laws, and that the lack of an adequate procedure breached one applicant’s right to privacy. Substantive Irish abortion law stands untouched.
The Court found that Ireland’s laws “struck a fair balance between the right of the first and second applicants to respect for their private lives and the rights invoked on behalf of the unborn.”
It seems that substantive Irish abortion law is now explicitly ruled as compatible with the European Convention on Human Rights. But the court held that Ireland should put in place a procedure where a woman can have a determination made as to whether her life is at risk due to being pregnant. Yet the law upon which such decisions will be based will remain unchanged.
However, along with other outlets, theJournal.ie reported this morning that “the court had ruled that the Irish restrictions on abortion were a violation of Article 8 of the European Convention on Human Rights…”
The court in fact found Ireland’s restrictions on abortion perfectly compatible with the European convention. It was the procedure for giving effect to the Irish laws that the court took issue with.
The court held that the Irish “authorities failed to comply with their positive obligation to secure to the third applicant effective respect for her private life by reason of the absence of any implementing legislative or regulatory regime providing an accessible and effective procedure by which the third applicant could have established whether she qualified for a lawful abortion in Ireland in accordance with Article 40.3.3 of the [Irish] Constitution.”
Of the three applicants, the court dismissed the claims of the first two, but said: “The third applicant’s complaint concerns the failure by the Irish State to implement Article 40.3.3 of the Constitution by legislation and, notably, to introduce a procedure by which she could have established whether she qualified for a lawful abortion in Ireland on grounds of the risk to her life of her pregnancy.”
The court concluded that neither the “medical consultation nor litigation options” relied on by the Government constituted effective or accessible procedures.
The legally defined circumstances in which abortion, or treatment leading to abortion, is permitted will remain exactly the same as before. But existing informal procedures, where the decision as to whether there is a real threat to the life of the mother is made during medical consultations, and in the courts, are held to be inadequate. The court ruled that a better procedure should be in place to implement Ireland’s existing laws.
The lack of an adequate procedure was a breach of Article 8 of the convention: “Consequently, the court concluded that Ireland had breached the third applicant’s – ‘C’ – right to respect for her private life given the failure to implement the existing constitutional right to a lawful abortion in Ireland.”
Woman C was unable to find a doctor in Ireland who would state that her pregnancy posed a danger to her life. It is however possible that, even had a different procedure existed, no doctor would have found a real threat to her life from being pregnant in any event, and she would still have had to travel to the UK, as her abortion would then still have been found to be unlawful in Ireland.
Article 40.3.3 of Ireland’s Constitution treats the life of the unborn as equal in value to the lives of their mothers. The Government defended the Irish position on abortion, arguing that the European Convention on Human Rights consistently recognises the traditions of different countries as regards the right to life of unborn children.
Many media outlets initially gave the impression that the ruling would be legally binding in a directly effective way. However, even though the ruling does not change Ireland’s substantive law, the European Court of Human Rights ruling can in any event effectively be ignored. In a recent example, the court issued a strongly worded ruling on the retention of DNA data by the UK, which the British government then instructed its police force to ignore.
In Britain, courts have held that, faced with conflicting authorities from the European Court of Human Rights and the British House of Lords, (now called the Supreme Court) the House of Lords takes precedence.
It is for the Irish state to decide how to implement any changes it may wish to make. The court’s ruling is not directly effective in Ireland, contrary to the impression given in much of the media.