THE IRISH TIMES today reported that a group of Fine Gael deputies and senators have signalled their intent to revolt against so-called ‘abortion liberalisation’.
The move is foreshadowing the response of Minister for Health James Reilly to whatever recommendations might be made by the expert committee established in the light of A, B & C v Ireland.
The concept of ‘abortion liberalisation’ needs some interrogation here, for what is at question is not in fact the liberalisation of the abortion regime (which suggests the ‘loosening’ of rules or ‘widening’’of access), but rather giving effect to the constitutional regime that already exists.
The Irish Constitution protects with equal vigour the right to life of a pregnant woman and of her unborn child in Article 40.3.3. Over twenty years ago, in the by now infamous case of Attorney General v X, the Supreme Court determined that this meant that the Constitution permitted abortion where there is a real risk to the life of the mother including from suicide. The Supreme Court laid down the test in unequivocal language:
“[I]f it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible”.
This makes it quite clear that there is a very limited right, under the Constitution, for a woman to access an abortion. However, no government over the last 20 years has acted on that decision to put in place a clear system whereby the right can be exercised.
What, then, was the 2010 case of A, B & C v Ireland all about? Simply put, Ms C – the only successful applicant in the case – claimed that she believed she fell under the constitutional right to an abortion, but that the lack of a framework to apply the test meant that she could not effectively access abortion in this country. As a result, she had to travel for her abortion and this, she claimed, was a violation of her rights under the European Convention on Human Rights. The European Court of Human Rights agreed, deciding that where a state has allowed for abortion in some circumstances a system must be in place whereby a woman can avail of an abortion if she satisfies the test.
Rather than talk misleadingly of liberalisation, the present discussion should be one of respect for the Constitution
In effect, all the European Court of Human Rights told us was what we already knew: where there is a legal right to do ‘y’ it must be possible for that right to be exercised, otherwise it is essentially illusory. It did not tell us that we must allow abortion in more situations than is currently the case; rather, the extent of the availability of abortion is a matter for the state to decide.
In Ireland, we have already decided on that. We have a clear constitutional text, interpreted by the Supreme Court by means of a straightforward test outlined above, and which the People twice chose not to change when invited to do so in referenda (1992 and 2002). In essence, responding to A, B & C v Ireland (by which, incidentally, Ireland is legally bound) is simply a matter of giving effect to the right that a woman whose pregnancy endangers her life is guaranteed by the Constitution. That can be done by putting in place some clear and workable scheme so that doctors would know what they can do and when, and women could find out whether they can have an abortion here or need to travel because their circumstances fall outside of the narrow exception in Article 40.3.3.
The expert committee’s report might provide an opportunity for a broader discussion about abortion in Ireland – especially about whether we might want to broaden access – but that is a separate matter to legislating for X and A, B & C. To represent one as the other seems at best an elementary mistake, and at worst a disingenuous attempt to deflect attention from twenty years of politicians’ abdication of their duty to give effect to the terms of the Constitution.
For elected parliamentarians to threaten a mutiny rather than give effect to a provision of the Constitution as defined by the Supreme Court and impliedly endorsed by the People through two referenda is really quite remarkable in a constitutional democracy. Rather than talk misleadingly of abortion liberalisation, the present discussion should be one of respect for the Constitution, not to mention for women who find themselves in the narrow circumstances covered by Article 40.3.3 as it stands.
Fiona de Londras is currently a lecturer in UCD School of Law and, from September 2012, will be a Professor of Law in Durham Law School.
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