European court’s abortion judgment not black and white – 23rd September 2012 – The Sunday Business Post

European court’s abortion judgment not black and white – 23rd September 2012 – The Sunday Business Post

European court's abortion judgment not black and white

Dr Maria Cahill LLB, LLM, PhD

This article appeared in the print edition of the Sunday Business Post on 23rd September 2012

Anybody who claims, by reference to the decision in ABC v Ireland that Ireland is now compelled to legislate for abortion, arrives at their conclusion without much assistance from the judgment.

In fact, the court regularly uses 'mother' as a synonym for pregnant woman and 'her child' as a synonym for foetus. It rules that there is no right to an abortion under Article 8 of the European Convention, and, affirming its earlier ruling in Vo v France, holds that contracting states are entitled under the convention "to choose to consider the unborn to be a person and to aim to protect that life".

Acknowledging that there is broad consensus across the contracting states towards allowing abortion on looser grounds than those required by Irish law, the court nevertheless allows Ireland a broad margin of appreciation because there is "no European consensus on the scientific and legal definition of the beginning of life".

The judgment declares that protecting unborn life, as the Irish Constitution does by means of Article 40.3.3, is "a legitimate aim" and also "necessary in a democratic society" such as Ireland, where the majority of people value the right to life of unborn children. On this basis – that the Irish constitutional protection for the right to life of the unborn is compatible with the convention – the court rejects the claims of Applicants A and B.

Applicant C, the Lithuanian national, was in remission from an unspecified cancer when she became pregnant. Understandably concerned and fearful for her health, she searched online to assess her medical risks and travelled to England for an abortion.

She did not seek legal advice in Ireland and there are conflicting claims on the question of whether or not she consulted her oncologist after she became pregnant. (None of the facts of the case was proven, so this remains undetermined.)

The court ruled that Ireland was in violation of the convention for lack of "an accessible and effective procedure" by which Applicant C could have known her medical and legal position.

So, the take-home messages are that Article 40.3.3 of the Irish Constitution is compatible with the convention; that the prohibition on abortion is compatible with the convention, as the court confirmed by ruling against Applicants A and B; but that there is a problem of lack of clarity in cases where women face medical threats to their lives, as the court determined by finding in favour of Applicant C.

In order to address the lack of clarity that the court found to be problematic, we must therefore focus on the person in the circumstances of Applicant C; that is, on the woman who faces a medical risk to her life during her pregnancy.

While we cannot know exactly how the legal and medical professionals failed Applicant C because of the lack of evidence presented, we do know that Ireland is internationally recognised for the exceptional standard of care provided to women in the same position as Applicant C, and consistently ranks first or second in the world for lowest maternal mortality rates.

It is unquestionably the case that, had her cancer returned and had she sought treatment in Ireland, Applicant C's medical team would have acted to save her life, and her treatment plan could have included radiotherapy, chemotherapy, hysterectomy or any other treatment, notwithstanding that the unintended but foreseeable side-effect of such treatments may potentially have been the loss of her child.

The problem is then that there was no procedure that made this clear enough to her, with the result that she trusted her own Google-searched self-diagnosis, rather than trusting the care that she would have received at the hands of the medical professionals. Therefore, the clarification needed is that the current best practice two-patient model, whereby every medical effort is made to care for the lives of both mother and child, should be placed on a regulatory or statutory footing so that women in the circumstances of Applicant C can be assured that the medical care they need will be provided, to the highest international standard.

Still, those procedures are only useful if a woman has already entrusted herself to the care of a doctor.

For the sake of any other woman like Applicant C, who would turn in desperation to Google in order to self-assess her chances of dying, the Department of Health should initiate an information campaign highlighting that world-leading healthcare is provided to women and children as standard throughout pregnancy. It is an injustice to women such as Applicant C that our outstanding record of maternal health care is such a well-kept secret.

This approach does not necessitate giving legislative effect to the decision in the X case, which is legitimate because Applicant C did not argue suicidal ideation, and therefore her legal position is different to that of the woman in X.

Despite the great clarity with which Article 40.3.3 affirms that the right to life of the mother and the right to life of the unborn are "equal", the Supreme Court ruled in the X case that the right to life of the mother is "superior" to the right to life of the unborn which was labelled "contingent". This departure from the unambiguous constitutional position and the two-patient model it inspires resulted in the legal outcome that, if a mother threatens to commit suicide, the Supreme Court holds that she has the right to an abortion.

Unfortunately, the Supreme Court reached this conclusion without hearing expert psychiatric evidence, nor could it have been aware of the huge volume of medical research which has emerged since and which shows that abortion is not a treatment for suicide, but may actually increase its risk.

Furthermore, in the X case there were no time limits placed on that right to abortion in case of suicide. Therefore, bringing clarity to the position held in the X case would entail legislating or regulating for an extremely liberal position on abortion – one that would allow all women who establish that they are at risk of committing suicide to have abortions right up until the moment they give birth.

Any temporal restrictions that the legislature would impose would be inconsistent with the X case, and would therefore add another layer of confusion to the current position, which is the exact opposite of what ABC exhorts. (To overturn the X case, and return to the original clear meaning of Article 40.3.3 which is expressly endorsed by the European Court of Human Rights in ABC, we could pass a constitutional amendment by referendum.)

Ultimately, since the European Court of Human Rights holds that there is no right to an abortion under the convention and that Ireland is entitled to protect the right to life of the unborn child, since the ABC case did not concern suicidal ideation, and since the X case does more to obscure than to clarify the legal position, the most reasonable, proportionate and effective way of responding to ABC v Ireland in order to afford clarity to those in the position of Applicant C is to regulate for the two-patient model – which is the current best practice in Irish hospitals and internationally celebrated.

Dr Maria Cahill is a lecturer in law at UCC

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