By Paul Brady, Sunday Business Post, 29th January 2012
The group considering the implementation of the European Court's abortion decision must produce a 'series of options' that covers all the issues
The government has established an expert group to "recommend a series of options" on how to implement the decision of the European Court of Human Rights in A, B, C v Ireland.
This case involved a challenge to Ireland's abortion laws by three women who claimed, on various grounds, that Irish law violated their rights under the European Convention on Human Rights.
There was widespread — but needless — confusion when the court's judgment was published in December 2010. Some sought to portray it as a ruling from Strasbourg that Ireland was now legally obliged to legislate for a right to abortion on the terms of the 1992 Irish Supreme Court decision in the X case. This interpretation is contradicted by the actual judgment.
In fact, the decision rests on two key conclusions. First, the court held that current restrictions on abortion in Ireland constitute a fair balance of the rights and interests in what the court called the "wide margin of appreciation" enjoyed by member states on this issue.
Secondly, the court found that the "uncertainty" arising from the lack of legislation or "effective and accessible procedures" for deciding what is legally permissible in individual cases violated the third applicant's right to private life. All other complaints were dismissed.
The judgment is fairly straightforward. The court noted that it was up to each state to decide if it would legally protect unborn human life and, if so, to balance such protection fairly with the rights of others. Once that balance is struck, states must provide "implementing…and institutional procedures" to ensure that the legal implications for individuals can be readily established with reasonable certainty.
But even a "wide margin of appreciation" is not the same as a blank cheque, and its exercise remains — at least in principle — subject to review by the court.
The current "balance" in Irish law was created by the Supreme Court decision in the X case. It held that an abortion is lawful only when there is a "real and substantial risk" to the life, as opposed to the health, of the mother. The court also ruled that such a risk included any real and substantial risk that the mother might commit suicide. However, the court reached this conclusion without hearing expert psychiatric evidence.
In the past ten years, knowledge of the potential mental health effects associated with abortion has been greatly advanced by peer-reviewed studies. This raises a legitimate question as to the appropriateness of basing Ireland's legislative response on terms decided by five judges 20 years ago, uninformed by the findings of expert research.
The experience of Britain of abortion on psychiatric grounds is instructive. Of the 189,574 abortions recorded in England and Wales in 2010, 97.7 per cent were carried out on the reported ground that a doctor considered that continuing the pregnancy carried a greater risk of injury to the mental health of the woman than an abortion. In other words, almost one in five pregnancies in England and Wales are ended by abortion on mental health grounds.
It is no exaggeration to say that it has been an fundamental working assumption of the law and practice of abortion in Britain over the last 40 years that ending a pregnancy by abortion will typically lead to improved mental health outcomes.
This assumption has been challenged by one of the most sophisticated studies on the question ever conducted. Writing in the British Journal of Psychiatry in 2009, Professor David Fergusson concluded that his research "clearly suggested that unwanted pregnancy leading to abortion was likely to be a risk factor for subsequent mental health problems, whereas unwanted pregnancy leading to live birth was not a risk factor for these problems".
Fergusson noted that no study had ever reported that abortion reduced mental health risks. In other words, on the empirical evidence available, it appears that a primary assumption underlying both the reasoning in the X case and the legal basis for the vast majority of abortions in Britain is, at best, questionable and, at worst, dangerously wrong.
Given the long debate over abortion in Ireland, it is perhaps understandable that some view the establishment of an expert group with a mix of cynicism and suspicion. If it is to confound such critics, the group must be fully cognisant of the Irish state's right — confirmed in ABC v Ireland — to determine its own substantive view on abortion and the equal dignity of every human life.
As persons chosen for their technical expertise rather than the representativeness of their moral views, the members of the expert group can best add value to the political process by producing as extensive and comprehensive a "series of options" as possible. Their report should detail objectively the constitutional, medical, legal and ethical issues and technicalities in respect of each option identified.
After that, as Europe has made clear, the responsibility will be on us, not only to decide our position, but to implement it clearly and thoroughly.
Paul Brady is a barrister and co-author of Psychiatry and the Law (Blackhall, 2010)