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% ).
Research carried out by the Alan Guttmacher Institute shows a clear
correlation between legal abortion and abortion safety.
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 children.
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
11th 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-discrimination.
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 .
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 1981.
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 next
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) .
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 problem
.
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'
.
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 exceptions.
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 legislation.
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' .
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.
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.
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 policies.
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.
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.
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.
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 legislation.
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.
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 .
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 pregnancy.
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”
.
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 pregnancy
.
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
Ireland
.(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.'.
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 law.
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”.
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 .
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 Court
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 Act.
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”.
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 girls.
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.
