The Eighth Amendment and Human Rights Standards

THE EIGHTH AMENDMENT AND HUMAN RIGHTS STANDARDS: IRISH ABORTION LAW IN AN INTERNATIONAL CONTEXT

Barry Gilheany (c)

This article shows how the Eighth Amendment and subsequent case and statute law has made the Republic of Ireland an outlier in terms of international treaties and jurisprudence concerning abortion. I demonstrate that pro-life/anti-abortion arguments for the right to life of foetuses/unborn do not pass muster in any major international and regional human treaties and subsequent case law. Examining internation al human rights treaties, particularly the European Convention on Human Rights and its judicial organ, the European Court of Human Rights (ECHR); I show how the women's right to choose abortion has largely been upheld by such bodies' interpretations of domestic or Member States' law when asked to rule on the relevant provisions. By contrast I illustrate how Post-Eighth Amendment Irish law has constructed women seeking terminations of pregnancy and their support agencies as alternatively bad actors, virtual wards of court without autonomy and agency or subjects in need of charity or mercy not justice. Such case law increasingly brought the Irish state into conflict with international human rights bodies to which it is a signatory with resultant reputational damage to the Republic of Ireland's international standing. The increasing untenability of Irish case law and the outcry created by the Savita Halappanavar case in October 2012 plus the unsatisfactory nature of the 2013 Prevention of Threats to Life During Pregnancy Act has helped to radically shift the discursive terms of the Irish abortion debate making the removal of the Eighth Amendment/Article 40.3.3 and the introduction of permissive abortion legislation possible.

Arguments for a woman's right to choose to terminate a pregnancy are founded on the principles of her bodily integrity and dignity as a human being and on her adult status as a rights bearers with the agency and autonomy to make responsible life choices without deferral to traditional patriarchal authorities such as the family, Church and the medical profession. Arguments for the right to choose are increasingly being grounded on health and harm reduction arguments as every year at least 70,000 women die from complications related to unsafe abortions, according to World Health Organisation (WHO) figures (in some countries it is further estimated that unsafe abortions account for 13% of all maternal deaths and in some countries it accounts for 60% )¹. Research carried out by the Alan Guttmacher Institute shows a clear correlation between legal abortion and abortion safety². Opponents of abortion (or the right to choose abortion) argue the unborn child/foetus has the right to life from conception and therein articulate the humanity and personhood of foetal life. They have attempted to co-opt right to life protections laid out in both international and regional law to claim that foetuses bear a similar right to life. Feminists and most human rights advocates argue that such assertions violate women's fundamental rights to life, autonomy and health by imposing involuntary motherhood on women and essentially requiring women to risk their own lives for the lives of their future children³.

An unsafe abortion is increasingly considered a major public health problem, human rights advocacy for abortion access has gained greater traction. The most explicit pronouncement of women's right to access abortion in the text of a human rights treaty is located in the Protocol on the Rights of Women in Africa (African Women's Protocol), adopted by the African Union on 11^th July 2003. The Protocol explicitly states:

“States Parties shall take all appropriate measures to … protect the reproductive

rights of women by authorising medical abortion in cases of sexual assault, rape,

incest, and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus”

Thus the African Women's Protocol is the only legally binding human rights instrument to explicitly address abortion as a human right and to affirm that women's reproductive rights are human rights. But there are other international and regional human rights protections that support women's right to safe, legal abortion and in addition to the right to life and health, women's right to abortion is bolstered by the broad constellation of human rights that bolster it, such as rights ,to privacy, liberty, physical integrity and non-discrimination⁴.

The animus behind the promotion of women's reproductive rights has largely been the work of the 1994 Cairo International Conference on Population and Development (ICPD) and the 1995 Beijing 1995 Fourth World UN Conference on Women. Significantly, the ICPD Programme of Action confirms that where abortion is legal, the procedure should be accessible and safe. While not explicitly calling for global legalisation of abortion, it confirms that 'women should have access to quality services for the management of abortion-related complications, and [p] ost-abortion counselling, education and family-planning services should be offered promptly, which will also help to avoid repeat abortions'. While international consensus documents are non-binding , such statements are often used to support legislative and policy reform, as well as interpretations of national and international law ⁵.

Treaty-monitoring bodies' interpretations and jurisprudence have also played a large role in advancing women's reproductive rights. The UN committee structure which oversees member states' compliance with each of the international human rights treaties and regional human rights monitoring systems i.e. the European Court of Human Rights (ECHR) created in 1950 by the European Convention on the Protection of Human Rights and Fundamental Rights adopted by the Council of Europe; the Inter-American Court on Human Rights created by the Inter-American Commission on Human Rights set up in 1959 as the primary human rights organ of the Organisation of American States and the African Commission on Human and Peoples' Rights (ACPHR) established under the African Charter on Human and Peoples' Rights (African Charter) which was adopted by the Organisation of African Unity (now the African Union) in 1981⁶.

To date, no treaty-monitoring body has explicitly recognised women's right to abortion on request or for socio-economic reasons, nor have they explicitly called for the legalisation of abortion on those grounds. However, the recognition by treaty-monitoring bodies that restrictive abortion laws may force women to resort to illegal,and therefore, unsafe, life-threatening abortions can be utilised by pro-choice advocates to support abortion on request or for socio-economic reasons as I show next⁷

The International Covenant on Civil and Political Rights, 1966 (ICCPR) provides an explicit pronouncement of the right to life. Article 6 (1) of the ICCPR states that : 'Every human being has the inherent right to life'. The Human Rights Committee (HRC), the ICCPR's interpretative body, stresses in General Comment No.6 (right to life) that the inherent right to life should be understood in a restrictive manner. General Comment No.6 requires States Parties to take positive action to ensure the right to life , particularly measures to increase life expectancy. Additionally, the HRC's General Comment No.28 on equality of rights between men and women asks States Parties, when reporting on the right to life protected by Article 6, 'to give information on any measures taken by the State to help women prevent unwanted pregnancies and to ensure that that they do not have to undergo clandestine abortions. General Comment No.28 also considers laws or policies where States impose a legal duty upon doctors and other health workers to report cases of women who have undergone abortion, a potential violation of the right to life (Article 6) and the right to be not to be subject to torture or cruel, inhuman or degrading treatment or punishment (Article 7) ⁸.

The Human Rights Committee has made the link between illegal and unsafe abortions and high rates of maternal mortality. The HRC has further noted that illegal abortions have serious harmful consequences for women's lives, health and well-being. It has raised particular concerns about the criminalisation of abortion, even when the pregnancy is the result of rape and confirmed that such legislation is incompatible with women's right to life under Article 6. The HRC therefore has recommended that States Parties adopt measures to guarantee the right to life for women who decide to end their pregnancies, including ensuring the accessibility of health services and emergency obstetric care. In the HRC's 1998 Concluding Observations to Ecuador, it linked the high rate of suicide among adolescent girls and the restrictions on abortion to find them to be incompatible with adolescents' right to life, and recommended that the State Party adopt all legislative and other measures, including increasing access to adequate health and education facilities, to address the problem⁹ .

The HRC has also called upon States parties to amend restrictive abortion laws to help women avoid unwanted pregnancies and unsafe abortions, and to bring laws in line with the ICCPR, specifically Article 6 (right to life). For example, the HRC's Concluding Observation to Poland expressed deep concern regarding the State party's restrictive abortion law which '… incite[s] women to seek unsafe, illegal abortions, with attendant risks to their life and health'¹⁰ .

To reduce the rate of abortion and address the prevalence of unsafe abortion, the HRC has recommended increased access to family planning services and education. The HRC has also expressly referenced States' Parties duty to protect all persons' lives and education. For example, the HRC recommended that Chile amend its ban on abortion to include exceptions¹¹.

With respect to abortion, CEDAW explicitly frames the issue of maternal mortality as a result of unsafe abortions as a violation of women's right to life. To this end, CEDAW has recommended that States Parties increase access to family planning programmes and services, especially to reduce the number of unsafe abortions and maternal mortality rights. It has also recommended making a range of contraceptives and family planning methods more affordable, and giving social security coverage for abortion procedures. Finally, CEDAW has asked States Parties to review legislation making abortion illegal and has praised States Parties for amending their restrictive legislation¹².

Article 6 of the International Convention on the Rights of the Child 1989 (ICRC) protects children's right to life and survival. The Committee on the Rights of the Child (CRC) has expressed repeated concern over adolescent girls' access to safe abortion services and the need for States Parties 'to … provide access to sexual and reproductive health services … including … safe abortion services' ¹³.

Although the International Covenant on Economic Social and Cultural Rights 1966 (ICESR) does not explicitly confer the right to life, the Committee on Economic, Social and Cultural Rights (CESCR) has repeatedly expressed concern regarding the relationship between high rates of maternal mortality and illegal, unsafe and clandestine abortions and high maternal mortality rates and to permit or consider permitting abortion for therapeutic reasons.¹⁴

UN Treaty monitoring committees have expressed concern about cases regarding abortion in Ireland. Most notably in 2016 and 2017 the UN Human Rights Committee found that Ireland had violated a number of the rights of the ICPR following complaints taken by Amanda Mellet and Siobhan Whelan, both of whom experienced pregnancies with fatal foetal abnormality. In Ms Mellet's case the UNHRC found a violation of Article 7, namely the prohibition of cruel, inhuman and degrading treatment. The committee was of the opinion that many of these negative experiences could have been avoided had she been able to terminate her pregnancy in the familiar environment of her own country and under the care of the medical professionals whom she knew and trusted.¹⁵

The Committee also found a violation of Article 17, namely, protecting the right to privacy in that the interference with Ms Mellet's decision on how to cope with her unviable pregnancy was unreasonable and arbitrary. The Committee also found a violation of Article 26, namely equality before the law, due to the financial cost of travelling to the UK. Relying on the same reasons, the Committee also found in the case of Siobhan Whelan violations of Articles 7, 17 and 26; namely prohibition against cruel, inhuman and degrading treatment; protecting the right to privacy and equality before the law. The acknowledgement by the Minister of Health, Simon Harris, of the UNHRC's views, an ex gratia payment of 30,000 Euro to the aggrieved party and a detailed itemisation of the steps taken by the State on the facts of the case, further demonstrates the import of the Irish state's international legal obligations for domestic law and policies¹⁶.

In some instances , anti-abortion/pro-life advocates have attempted to co-opt right to life protections set forth within international and regional human rights law to assert that foetuses also bear a right to life. These assertions are incompatible with women's fundamental human rights to life, health and autonomy, by imposing involuntary motherhood onto women and, in essence, requiring women to jeopardise their own lives of their future children. These claims have been defeated on various occasions within both international and regional human rights forums as shall be seen now.

For historical analyses of the Universal Declaration of Human Rights 1948 (UDHR), ICCPR and ICRC – the major international human rights treaties conferring the right to life- confirm that that right does not extend to foetuses. Article 3 of the UDHR, the first pronouncement of the right to life, specifically limits that right to those who have been 'born' In fact, the term 'born' was intentionally used to exclude the foetus or any other ante natal application of human rights. This is confirmed by the fact of the defeat of a proposed amendment to remove the term and protect the right to life from the moment of conception

Therefore, in the context of abortion, the UDHR limits the right to life to women and girls.¹⁷

Likewise, the ICCPR rejects the contention that the right to life commences before birth. As with the UDHR, an amendment stating 'the right to life is inherent in the human person from the moment of conception, this right shall be protected by law' was rejected. The HRC has also repeatedly called upon States Parties to liberalise laws which criminalise abortion, a position which negates any supposed right to life for foetuses.¹⁸

Foetal claims to the right to life brought to the European human rights system have similarly been largely ineffective. When foetal rights claims have been asserted based on Article 2's substantive protections, ECHR bodies have repeatedly found that foetuses do not enjoy an absolute right to life. For example, the European Commission of Human Rights (ECtHR) confirmed in Paton v United Kingdom, that the use of the the term 'everyone' in Article 2 protecting the right to life, does not include foetuses, although it left open the question whether the 'right to life' in Article 2 might cover the 'life' of the foetus, with implied limitations. Dismissing the complaint of the husband-claimant in Paton, the ECtHR confirmed that a foetus' potential right to life did not outweigh the interests of the pregnant woman as the foetus is intimately connected with and cannot be isolated from the life of the pregnant woman.¹⁹

A similar claim was brought in Boso v Italy when the ECtHR found the contested abortion was not breach of Article 2. It was performed under Italian law which permitted an abortion in the first twelve weeks of pregnancy to protect the woman's physical and mental health thus striking a fair balance between the woman's interest and the state's interest in protecting the foetus. The rejection of the applicant's claim rested partially on the fact that Italy's law protects the health of pregnant women. Since both abortion laws in these cases were fairly permissive, it is unclear whether the ECHR would likewise defer to Member States with less liberal abortion legislation²⁰.

Thus while the ECtHR has affirmed that foetuses do not possess an absolute right to life, the Court has not ruled unequivocally whether Article 2's protections apply to foetuses, and therefore avoiding any conclusion which may impinge on Member States' abortion laws. When asked for the first time in Vo v France to definitively determine whether foetuses bear the right to life, it avoided doing so by noting there is no European consensus on the scientific and legal definition of the beginning of life.²¹ This lack of consensus is the crux of the matter in any ethical debate over abortion and related reproductive rights.

The applicant in Vo argued that her foetus was denied the right to life based on medical negligence which led to her unanticipated therapeutic abortion. The ECtHR ultimately declined to treat the foetus as a 'person' or requiring a homicide prosecution, by deferring the issue to France, in line with the margin of appreciation doctrine. In the Court's view, the civil remedy available in French law was sufficient .²²

I have already shown how Ireland has been in breach of UN treaty obligations on human rights by virtue of its abortion law. How does the Irish state match up to European human rights standards in respect of its abortion law? Before addressing this question, let us take a brief detour into how the abortion issue in Ireland has been constitutionalised.

The equality between the right to life of the mother and that of the foetus in Article 40.3.3 seems to relate to protection for a woman's physical survival but not her dignity. The Supreme Court judgement in the X-case overturning the enjoinder preventing her from travelling to Britain for an abortion was based on the reasoning that the minor's risk of suicide satisfied the criteria of a “real and substantial” risk to her life. So in order to align the case with the right to life that Ireland guarantees equally to women and the unborn, the Court had to ignore the young woman's agency – her refusal to have sex with her rapist and the consequent risk she might harm herself if forced to bear her rapist's child; instead the Court viewed her case as if concerned a physiological risk from pregnancy²³. The Court explained that Article 40.3.3 should be interpreted in terms informed by the virtue of charity: “not the charity which consists of giving to the deserving, for that is justice, but the charity which is also called mercy” ²⁴ .

Constitutionalism of the abortion issue in such a form is paternalist, in its conception of women as well as the unborn. It sees women as dependents who may deserve protection; protection against injuries to their physical and emotional welfare, rather than to their autonomy. Constitutionalism in this form tends to incorporate traditional gendered role based views of women's citizenship – for example that the burdens of pregnancy are naturally assumed by women, or by women who have consented to sex, except when such burdens exceed what is normally to be expected of women, at which point women may be exempt from penal sanction for aborting a pregnancy²⁵ .

As explained earlier the European Court of Human Rights has tended not to adjudicate on substantive claims to abortion; it makes rulings when clear and certain abortion laws are the objective of claims made to it and this was the primary focus of A,B, and C v Ireland. This case was structured on a division between substantial and procedural abortion rights which proved consequential in judgement. Applicants A and B argued but lost a substantive challenge to the Irish law, seeking to legalise abortion in the case of health. Applicant C won a procedural right to life-saving abortion, the only legal ground for abortion in Ireland²⁶ .(as things stand currently of course)

Applicant C suffered from a rare form of cancer and was advised that her pregnancy might affect her prognosis and . She argued that because of the chilling nature of Irish abortion law, she could not receive accurate information about the risks of pregnancy. Her claim against the Irish state rested on the claim that legal responsibility cannot be vested solely in the medical profession 'given the lack of clarity as to what constitutes [in the words of the Supreme Court judgement in the X case] “a real and substantial risk to life” … [and] the chilling effect of severe criminal sanctions for doctors whose assessment could be considered ex post facto to fall outside that qualifying risk.²⁷'.

The European Court agreed because the primary deficiency in A, B, and C was not conflicts of interpretation per se, with whom interpretive authority should lie, but that the repeated interpretations required of Irish abortion law. It found that the regulatory framework was defective not in the failure to clarify the legal grounds for abortion, nor in the absence of a resolution of the conflict over them, but in its failure to constrain the arbitrary actions of doctors – the discretion the law afforded them to impose their views on women, and to thus thwart the intentions of the law²⁸.

That the European Court sided in A,B, and C with the national institution is charged with rights protection, i.e. the Irish Supreme Court is no coincidence. It deliberately tracked expressions of regret by the Irish judicial authority that “Article 40.3.3 had not been implemented by legislation … that, when enacting that Amendment, that people were entitled to believe that legislation would be introduced to regulate the manner in which the right to life of the unborn and the right to life of the mother could be reconciled”. To underline the European Court's preference for procedural rather than substantive challenges to national abortion laws, it refused the case, D v. Ireland, brought for its lack of a legal ground in Irish abortion law on foetal impairment on the grounds that the applicant had not explored all domestic avenues of redress.

Since one of the justifications given by the Pro Life Amendment Campaign in the early 1980s for inserting an anti-abortion clause into the Constitution was that it would forestall any attempt by a domestic or European Court to foist legal abortion upon an unwilling Irish populace; it is worth reflecting on a structural principle of the European human rights system: subsidiarity. Bearing in mind the touchstone issue of abortion and how it feeds into discussions on “Irishness” and Irish “identity”, the European Court affirmed in one its formative cases, (The Belgian Linguistic Case (No 2) (1968) 1 E.H.R.R, 252, at para. 10) the Court affirmed that it will not5 “assume the role of the competent national authorities … [lest it] lose weight of the subsidiarity nature of the international machinery of … the Convention”²⁹. Within the system, states are to retain the primary responsibility for rights protection.

In abortion case law, the principle of subsidiarity tends to be articulated in the margin of appreciation, a doctrine by which the European Court gives state authorities great latitude to decide on the substantive content of their abortion laws. The wide margin offered to Ireland in A, B, and C was justified by the lack of consensus in Europe on the morality of abortion and by the “lengthy, complex and sensitive debate in Ireland. By dint of their constant contact and interaction with domestic,democratic deliberation, state authorities are better qualified than an international judge to balance the conflictual and competing rights and interests in an abortion law ³⁰.

The death of Savita Halappanavar where the investigation found “an apparent over-emphasis on the need not to intervene until the foetal heart stopped together with an under-emphasis on … managing the risk of infection and sepsis in the mother” and named the lack of clear clinical guidance on lawful abortion a “material contributory factor” in the doctor's decision making silenced any arguments about the usurpation of constitutional rights of the Irish people by the European Court³¹ and set in train national and international outrage over Ireland's cruel yet legally vague abortion regime.

The outcome of this latest collective national angst over abortion was the Protection of Life during Pregnancy Act 2013 which, if for nothing else, can be critiqued for its doublespeak; conservative critics feared that the procedural rights which the Act enables would rupture the right-to-life exception wide open and permit access to abortion well beyond the boundaries of the substantive law while liberalisation advocates complained that the Act does not construe access to legal abortion as a constitutional right. Rather than granting entitlements; the Act is couched in the language of permission: what is lawful and what does or does not constitute an offence. Most problematic of all the Act's procedures is certification; a woman can only access a lawful abortion on the verification of an obstetrician and a relevant specialist that there is a “real and substantial risk” to her life and in the case of suicidal ideation, the assent of three specialists is required. If she is denied permission, a woman can apply in the “prescribed form and manner” for a review of the decision and she is entitled to be heard by the review committee, the one single mention of the word in the Act³².

In evidence given to the Joint Oireachtas Committee on the Eighth Amendment, the human rights scholar Christine Zampas cites the report of his visit to Ireland by the Council of Europe Commissioner for Human Rights reporting in which he states that the Eighth Amendment to the Irish Constitution [ …] departs from the position consistently held by human rights bodies that the right to life as enshrined in relevant international treaties, does not apply to prenatal life”³³. In addition Zampas cites a landmark case against Peru in which a sexually assaulted child was not given an abortion in part because of state measures to protect foetal life and which the UNEDW found to be violation of the Convention as conformation that foetal interests cannot trump the human rights of women and girls³⁴.

From feminist, human rights, justice and public health perspectives, Irish abortion law fails all procedural and substantive legal tests. The relationship between the Eighth Amendment and the case law and medical practice it has spawned and that of international human rights treaties shows that Irish abortion law is not just as an outlier but that Ireland has been a violator of the obligations it has entered into as a signatory to more than one of the six human and civil rights conventions; both on procedural and substantive grounds. The Eighth Amendment is not fit for purpose not least because it manifestly fails to do what is says on the tin: guarantee protection of life of the unborn with, as far as practicable, due regard to the equal right to life of the mother. Article 40.3.3, its sui genesis case law and the medical tragedies that have arguably been caused by it has sought to protect the physical existence of an entity with the potential for life but around which there is no consensus as to when its life actually commences and only protects, in extremis, the physical life of the pregnant woman; not her bodily integrity, dignity and capacities for agency and autonomy The Eighth Amendment's grandiloquent assertions of the sanctity of the life of the unborn says nothing about and does not encourage discussion about the quality of life before and after birth in terms of maternity care, childcare, nutrition and threats to unborn life from a future Thalidomide. Repeal of the Eighth Amendment and the passage of abortion legislation in line with the Western European norm but which balances appropriately the dignity and autonomy of the woman with societal interest in the development of foetal life will mark the moment that the Republic asserts proper sovereignty among the community of liberal democratic nations. It will have definitively cast away the shackles of British Victorian morality, ultramontane Catholicism and US Moral Majority colonisation that the Eighth Amendment really signified not; not the beacon of light of Christianity onto the decadent, secularising nations of the world that its stormtroopers proclaimed it to be.

1Christina Zampas and Jaime M. Gher Abortion as a Human Right – International and Regional Standards Human Rights Law Review 8:2 (2008)

2Alan Guttmacher Institute Abortion in Context: United States and Worldwide', May 1999, available at; http://www.guttmarcher.org/pubs/ib0599,html

3Zampas and Gher, p.262

4Ibid pp.250-51

5Ibid p.253

6Ibid, p.255

7Ibid, p.255

8Ibid p.256

9Ibid p.257

10 Ibid p.258

11Ibid p.258

12Ibid pp.258-59

13Ibid p.260

14Ibid p.261

15Emily Logan Constitutional Issues Arising from the Citizens' Assembly Recommendations. Proceedings of the Joint Committee on the Eighth Amendment of the Constitution. Houses of the Oireachtas 4^th October 2017

16Emily Logan, Ibid

17Zampas and Gher: p.262

18Zampas and Gher: p.263

19Zampas and Gher: p.264

20Zampas and Gher: p.265

21Zampas and Gher: p.265

22Zampas and Gher: p.266

23Reva Siegel The Constitutionalisation of Abortion pp 13-35 at pp.30-31 in Rebecca Cook, Joanna N.Erdman and Bernard M. Dickens ( 2014) Abortion Law in Transnational Perspective Philadelphia; University of Philadelphia Press Studies in Human Rights

24(Attorney-General v. X and others [1992] 1 IR 1, para. 32 (citing McGee v. Attorney-General [1974] IR 284, 318-9)

25 Siegel in Cook et al p.31

26Johanna N. Erdman “The Procedural Turn: Abortion and the European Court of Human Rights” pp. 121-142 at p.125 in Cook et al

27, B and C v Ireland, note 18, at para.178

28Erdman pp.125-26

29Ibid p.130

30Ibid, pp.130-

31 Ibid, p.134

32Ibid, pp.134-35

33Christina Zampas Joint Oireachtas Committee on the Eight Amendment Proceedings 4^th October 2017

34Christina Zampas, Ibid