Conor Casey
Staff Writer
In the last few weeks, the people of Ireland witnessed the twentieth anniversary of the infamous X case, one of the most controversial in the history of the state. Despite the twenty year gap, the most pressing question stemming from the case remains unanswered. That is, when exactly is access to abortion legal in Ireland? On the 23rd of February 2012 a bill was introduced to the Dáil which would legislate for limited access to abortion in Ireland following the X case ruling 20 years ago. Many pro-choice activists had hoped that the introduction of the European Convention on Human rights Act in 2003 would have compelled the government to allow relatively comprehensive abortion access like many other EU states. However the recent 2010 European Court of Human rights decision in the case of A, B and C v Ireland has dashed such hopes. In this article I will briefly look at why the ECHR has not had the impact that some hoped it would have on the abortion debate. I will also look at why, at the time of writing this article, Ireland’s abortion debate appears to be closed for the foreseeable future.
Fifty years after ratifying the European Convention on Human rights, Ireland gave “further effect” to the convention with the European Convention of Human Rights Act 2003. However some commentators have argued that the incorporation of the ECHR has added little to rights protection in Irish Law. In 2004 the former Minister for Justice Michael McDowell gave a speech stating that the rights enshrined in Bunreacth Na hEireann (the Irish constitution) ensured that Irelands record before the ECHR is ‘an enviable one, probably one of the best, if not the best, in terms of convention compatibility and compliance among the states of the Council of Europe.’
However, despite this admirable record, the decision reached by the European Court of Human Rights in the recent A, B and C v Ireland case has served to show tensions between the constitution and the convention. Constitutional systems such as Ireland, South Africa and the United States are all constructed around a general framework of ideals and values, to put it simply. Although such values may change over time, some values will remain deeply embedded. A string of legal rulings in the 60’s and 70’s gave life to the Catholic natural law references in the constitution. Indeed the report of the constitution review group in 1996 observed that “the drafters of the 1937 constitution clearly held natural law principles” which were “evident” from the language employed. Broadly, the Catholic natural law values of the constitution have ensured that judicial recognition and safeguarding of fundamental rights is potentially more extensive than other jurisdictions. However there remains a tendency in the judiciary to afford a greater degree of protection to rights that sit comfortably with Catholic social `norms`. Rights which appear to rub against the grain of Irish social norms find it difficult to succeed in securing recognition; these issues include recognition of gay marriage, transgender rights and access to abortion.
As we can see, the Irish Constitution is a document laced with provisions based upon Catholic social philosophy. Unlike the Constitution, the ECHR is an international treaty. It does not attempt to set out an overarching vision of morality what each contracting state should strive for. Instead it lists a fixed and finite list of human rights guarantees. As a result the convention is more concerned with securing respect for the individual’s right to choose their own idea of what a “good” or moral life consists of, subject to the provisions of the convention. ECHR rulings have, according to legal academic Colm O’Cinneide, “Given more weight to the individual autonomy and self-determination in their private lives than to countervailing national concepts of the good”
Although similar in many ways, it is plain to see that the differences in both documents would ensure that incorporation of the ECHR would lead to a conflict over abortion rights. Indeed in 2008 Mr. O’Cinneide predicted quietly accurately that
Any conflict between the ECHR and the Constitution over abortion rights will reflect a deeper tension between the normative values built into each system
Although Irish courts must now afford “due regard” to the decisions of European Court of Human Rights (ECtHR), the ECHR act itself has not been decisive in many areas since incorporation in 2003. It is subordinate to the constitution, limiting the scope of its enforcement ability. Legislation can be declared “incompatible” with the ECHR, but for constitutional reasons, this does not affect the continued operation of any legislation. Although in A, b and c the Grand Chamber of the European Court of Human Rights ruled that Ireland was at fault with regards to their lack of clear legislation on where abortion was permissible, they did not recognise abortion as a convention right that Ireland must allow for. They also stated that “it is not for this court to indicate the most appropriate means for the state to comply with its positive obligations”. This means that Ireland may deal with the decision in a way they see most appropriate and that they will not be asked to introduce comprehensive access to abortion as found in most EU countries.
In another earlier case from Poland, the ECtHR ruled that the standards of legal certainty and equality should be applied to abortion law, with some commentators observing that the court “had come very close to recognising a convention right to an abortion”. However with decision in A, B and C it is apparent that ECHR jurisprudence affords a strong respect for the role of the state.
Thus Ireland’s current stance on abortion, much more restrictive than the vast majority of council states, will remain unchallenged by the ECHR, provided that it meets its obligation to provide clear guidelines on when abortion may be accessed legally. It remains to be seen how the state will accomplish this charge and until then we are stuck with the “anywhere but here” policy implicitly adopted since the X case twenty years ago.
