A, B and C v Ireland

Last updated

A, B and C v Ireland
Decided 16 December 2010
ECLI ECLI:CE:ECHR:2010:1216JUD002557905
ChamberGrand Chamber
Language of proceedingsEnglish, French, Turkish, Russian, Armenian, Ukrainian, Croatian, Azerbaijani, Romanian, Georgian, Macedonian, Icelandic, Italian, German
Nationality of partiesIrish, Lithuanian
Ruling
Irish law prohibiting abortion in all cases except risk to life of the mother does not violate Article 8 of the ECHR. Ireland did violate the Article 8 rights of the third plaintiff by failing to provide a mechanism by which she could determine whether she could legally obtain an abortion in a situation where she believed her life might be at risk. Judgment against the first two plaintiffs but for the third.
Court composition
President
Jean-Paul Costa
Judges
Instruments cited
European Convention of Human Rights
Legislation affecting
Eighth Amendment of the Constitution of Ireland, Protection of Life During Pregnancy Act
Keywords
  • (Art. 35) Admissibility criteria
  • (Art. 35-1) Exhaustion of domestic remedies
  • (Art. 8) Right to respect for private and family life
  • (Art. 8-1) Respect for private life,
  • (Art. 8-2) Interference
  • (Art. 8-2) Necessary in a democratic society
  • (Art. 8-2) Protection of morals
  • (Art. 8-2) Prescribed by law
  • Margin of appreciation
  • Positive obligations
  • Proportionality
  • (Art. 41) Just satisfaction-{general}
  • Privacy
  • Abortion
  • right to a family life
Case opinions
Majority Costa, Bratza, Bonello, Bîrsan, Gyulumyan, Hajiyev, Myjer, Nicolaou
Concurrence López Guerra, Casadevall
Concurrence Finlay Geoghegan
Dissent Rozakis, Tulkens, Fura, Hirvelä, Malinverni, Poalelung

A, B and C v Ireland is a landmark 2010 case of the European Court of Human Rights on the right to privacy under Article 8. The court rejected the argument that article 8 conferred a right to abortion, but found that Ireland had violated the European Convention on Human Rights by failing to provide an accessible and effective procedure by which a woman can have established whether she qualifies for a legal abortion under current Irish law.

Contents

Facts

Three anonymous women, recorded in the case as "A, B and C" travelled to the United Kingdom to have abortions, because abortions were unlawful in Ireland. [1] : 13–26 

A

A, thinking her partner was infertile, had become pregnant unintentionally. She was unmarried, unemployed, living in poverty, with an alcohol addiction and had four children, all in foster care and one disabled. At risk of post-natal depression and feeling a fifth child would risk her progress in becoming sober, she borrowed €650 from a money lender at a high-interest rate to pay for travel and a private clinic in the UK, arriving secretly in the UK without telling her family or social workers or missing a contact visit with her children. On the returning train from Dublin she began bleeding profusely, was taken to hospital for a dilation and curettage and suffered pain, nausea and bleeding for weeks thereafter but did not seek further medical advice. After the claim was made to the ECHR, she became pregnant again and gave birth to a fifth child, while struggling with depression. However, she regained custody of two of her children.

B

B became pregnant after her "morning-after pill" failed. Two different doctors advised there was a risk of an ectopic pregnancy, although she had found it was not. She borrowed a friend's credit card to book flights to the UK. To ensure her family would not find out, she listed nobody as her next of kin once in the UK and travelled alone. The clinic in the UK advised her to tell the Irish doctors she had had a miscarriage. Two weeks after returning to Ireland she began to start passing blood clots, and sought follow-up care in a clinic in Dublin related to the English clinic, rather than attending an ordinary doctor because of her uncertainty of abortion's legality in Ireland.

C

C had been undergoing chemotherapy for cancer for three years. She had wanted children, but advice from doctors indicated that a foetus could be harmed during any ongoing chemotherapy. The cancer went into remission and she unintentionally became pregnant. While consulting her general practitioner on the impact of the pregnancy on her health and life and tests for cancer on the foetus, she alleged that she received insufficient information due to the chilling effect of the Irish legal framework. She researched the issues on the internet alone. Because she was unsure about the risks, she decided to go to the UK for an abortion. She could not find a clinic for a medical abortion, since she was a non-resident and the need for a follow-up, so she needed to wait a further eight weeks for a surgical abortion. The abortion was incompletely performed. She suffered prolonged bleeding and infection, and alleged the doctors provided inadequate medical care, and her general practitioner failed to refer to the fact after subsequent visits that she was no longer visibly pregnant.

Irish law

Article 40.3.3° of the Constitution of Ireland, as inserted by the Eighth Amendment in 1983, provided that "the State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right". This was interpreted by the Supreme Court in the X Case (1992) as permitting abortion only where the continuation of a pregnancy would put a woman's life (not merely health or other interests) at risk. Attorney Julie F. Kay argued on behalf of three women identified as "A, B and C" that the restrictions violated their right to not be subject to degrading and humiliating treatment under article 3, their right to respect for their private lives under article 8, a right to an effective national remedy for these rights under article 13 and equal treatment in relation to Convention rights under article 14. C further alleged her right to life, given the danger resulting from prohibiting abortions, was violated under article 2. The Irish government chose to defend the case, its Attorney General Paul Gallagher, pointing out that Ireland's laws had been endorsed in three referendums. [2] He requested the dismissal of the case because no domestic remedies had been sought by A, B or C and that there was no evidence that they interacted with verifiable legal or medical personnel or institutions in Ireland. The women were supported by a host of pro-choice charities, [3] while various anti-abortion groups intervened to support Ireland. [4]

Judgment

The Court held that "Article 8 cannot ... be interpreted as conferring a right to abortion". [1] : 214  It nevertheless considered that Ireland had violated article 8 with regard to the third applicant, C, because it was uncertain and unclear whether she could have access to abortion in a situation where she believed that her pregnancy was life-threatening. Rather than information being unavailable, the problem was that there was nowhere C could go to secure a legally authoritative determination of what her rights were in her situation. [1] : 267  In this regard it noted the "significant chilling" [1] : 254  effect of Irish legislation. All other complaints were dismissed. All of A, B and C's arguments that article 3 (right against inhuman and degrading treatment) as well as C's additional argument that article 2 (right to life) were violated were dismissed as "manifestly ill founded". [1] : 159, 165  The claims of A and B on the basis of article 8 were dismissed, because although it recognised the "serious impact of the impugned restriction on the first and second applicants" [1] : 239  and that there was consensus 'amongst a substantial majority of the Contracting States' [1] : 235, 112  regarding the legality of abortion, the Court did "not consider that this consensus decisively narrows the broad margin of appreciation of the State." [1] : 236, 237  Thus Ireland had a broad margin of appreciation to maintain its existing laws where they were sufficiently clear. [1] : 241  The Court did not consider it necessary to examine the applicants' complaints separately under Article 14 of the convention.

Significance

Contrary to the hopes or fears of various campaign groups that the case might become a pan-European clone of the US Supreme Court's landmark ruling in the case Roe v Wade , [5] the European Court of Human Rights emphasised there is no straightforward right to an abortion under the convention, and that member states have a broad margin of appreciation to prohibit abortion. [1] : 233–237  However, given the violation of applicant C's right to privacy, the result placed pressure on Ireland to further clarify whether and under which circumstances an abortion may be performed to save the life of a pregnant woman.

Resolution

The Irish government convened an expert group to address the implications of the judgement. [6] The expert group reported to the Department of Health the night before news of the Death of Savita Halappanavar broke. [7] [8]

In 2013, Ireland passed the Protection of Life During Pregnancy Act which the Committee of Ministers of the Council of Europe found closed the case. [9]

See also

Related Research Articles

<span class="mw-page-title-main">Abortion in the United Kingdom</span> Overview of the legality and prevalence of abortions in the United Kingdom

Abortion in the United Kingdom is de facto available under the terms of the Abortion Act 1967 in Great Britain and the Abortion (No.2) Regulations 2020 in Northern Ireland. The procurement of an abortion remains a criminal offence in Great Britain under the Offences Against the Person Act 1861, although the Abortion Act provides a legal defence for both the pregnant woman and her doctor in certain cases. Although a number of abortions did take place before the 1967 Act, there have been around 10 million abortions in the United Kingdom. Around 200,000 abortions are carried out in England and Wales each year and just under 14,000 in Scotland; the most common reason cited under the ICD-10 classification system for around 98% of all abortions is "risk to woman's mental health."

Abortion in Ireland is regulated by the Health Act 2018. Abortion is permitted in Ireland during the first twelve weeks of pregnancy, and later in cases where the pregnant woman's life or health is at risk, or in the cases of a fatal foetal abnormality. Abortion services commenced on 1 January 2019, following its legalisation by the aforementioned Act, which became law on 20 December 2018. Previously, the 8th Constitutional Amendment had given the life of the unborn foetus the same value as that of its mother, but the 36th constitutional amendment, approved by referendum in May 2018, replaced this with a clause permitting the Oireachtas (parliament) to legislate for the termination of pregnancies.

<span class="mw-page-title-main">Unborn Victims of Violence Act</span> Law that recognizes an embryo or fetus as a legal victim

The Unborn Victims of Violence Act of 2004 is a United States law that recognizes an embryo or fetus in utero as a legal victim, if they are injured or killed during the commission of any of over 60 listed federal crimes of violence. The law defines "child in utero" as "a member of the species Homo sapiens, at any stage of development, who is carried in the womb."

The Eighth Amendment of the Constitution Act 1983 was an amendment to the Constitution of Ireland which inserted a subsection recognising "the equal right to life of the pregnant woman and the unborn". Abortion had been subject to criminal penalty in Ireland since at least 1861; the amendment ensured that legislation or judicial interpretation would be restricted to allowing abortion in circumstances where the life of a pregnant woman was at risk. It was approved by referendum on 7 September 1983 and signed into law on 7 October 1983. In 2018, it was repealed by referendum.

Reproductive rights are legal rights and freedoms relating to reproduction and reproductive health that vary amongst countries around the world. The World Health Organization defines reproductive rights as follows:

Reproductive rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health. They also include the right of all to make decisions concerning reproduction free of discrimination, coercion and violence.

<i>Attorney General v X</i> Irish court case permitting abortion in exceptional circumstances

Attorney General v X, [1992] IESC 1; [1992] 1 IR 1, was a landmark Irish Supreme Court case which established the right of Irish women to an abortion if a pregnant woman's life was at risk because of pregnancy, including the risk of suicide.

Fetal rights are the moral rights or legal rights of the human fetus under natural and civil law. The term fetal rights came into wide usage after Roe v. Wade, the 1973 landmark case that legalized abortion in the United States. The concept of fetal rights has evolved to include the issues of maternal substance use disorders, including alcohol use disorder and opioid use disorder. Most international human rights charters "clearly reject claims that human rights should attach from conception or any time before birth." While international human rights instruments lack a universal inclusion of the fetus as a person for the purposes of human rights, the fetus is granted various rights in the constitutions and civil codes of several countries.

Abortion is illegal in El Salvador. The law formerly permitted an abortion to be performed under some limited circumstances, but in 1998 all exceptions were removed when a new abortion law went into effect.

The timeline of women's legal rights (other than voting) represents formal changes and reforms regarding women's rights. The changes include actual law reforms, as well as other formal changes (e.g. reforms through new interpretations of laws by precedents). The right to vote is exempted from the timeline: for that right, see Timeline of women's suffrage. The timeline excludes ideological changes and events within feminism and antifeminism; for that, see Timeline of feminism.

This is a timeline of reproductive rights legislation, a chronological list of laws and legal decisions affecting human reproductive rights. Reproductive rights are a sub-set of human rights pertaining to issues of reproduction and reproductive health. These rights may include some or all of the following: the right to legal or safe abortion, the right to birth control, the right to access quality reproductive healthcare, and the right to education and access in order to make reproductive choices free from coercion, discrimination, and violence. Reproductive rights may also include the right to receive education about contraception and sexually transmitted infections, and freedom from coerced sterilization, abortion, and contraception, and protection from practices such as female genital mutilation (FGM).

In the European Convention on Human Rights, Article 2 protects the right to life. The article contains a limited exception for the cases of lawful executions and sets out strictly controlled circumstances in which the deprivation of life may be justified. The exemption for the case of lawful executions has been subsequently further restricted by Protocols 6 and 13, for those parties who are also parties to those protocols.

<span class="mw-page-title-main">Abortion in Colombia</span>

Abortion in Colombia is freely available on request up to the 24th week of pregnancy, due to a ruling by the Constitutional Court on February 21, 2022. Later in pregnancy, it is only allowed in cases of risk of death to the mother, fetal malformation, or rape, according to a Constitutional Court ruling in 2006.

The Dominican Republic is one of 24 countries in the world and one of six in Latin America that has a complete ban on abortion. This complete ban includes situations in which a pregnant person’s life is at risk.

Tysiąc v. Poland was a case decided by the European Court of Human Rights (ECtHR) in 2007. A pregnant woman from Poland, diagnosed with a severe eye disease, tried to get an abortion to avoid an escalation of her disease. Her requests were rejected by several medical doctors and she underwent labor of her third child. Her condition later deteriorated, and she sued one of the doctors. Her criminal lawsuits were rejected in Poland and the case was appealed to the European Court of Human Rights, which accepted one part of the complaint, and the plaintiff was awarded damages.

Bodily integrity is the inviolability of the physical body and emphasizes the importance of personal autonomy, self-ownership, and self-determination of human beings over their own bodies. In the field of human rights, violation of the bodily integrity of another is regarded as an unethical infringement, intrusive, and possibly criminal.

The Irish Family Planning Association (IFPA) is an Irish charity working to enable people to make informed choices about sexuality and reproduction. The organisation promotes the right of all people to sexual and reproductive health information as well as dedicated, confidential and affordable healthcare services.

P. and S. v. Poland is a decision by the European Court of Human Rights in which the court ruled that the state of Poland had improperly hindered a 14-year-old girl in Lublin, P., from her right to an abortion. The other plaintiff in the case was S., her mother, born in 1974.

<span class="mw-page-title-main">Abortion-rights movements</span> Social movement advocating for legal access to abortion

Abortion-rights movements, also self-styled as pro-choice movements, advocate for the right to have legal access to induced abortion services including elective abortion. They seek to represent and support women who wish to terminate their pregnancy without fear of legal or social backlash. These movements are in direct opposition to anti-abortion movements.

D v Ireland is a case of the European Court of Human Rights concerning abortion in Ireland. It refers to the court case itself, and the circumstances surrounding abortion for fatal foetal abnormalities in Ireland. In 2002 Deirdre Conroy discovered her pregnancy was non-viable and had a termination in Northern Ireland. A public letter, written using a pseudonym, asking for it to be legal was credited with influencing the 2002 abortion referendum. She lost a court case in the ECHR in 2006 because she had not exhausted all domestic remedies. In 2013 after the death of Savita Halappanavar, she came forward, revealed her identity and again asked for this sort of termination to be legal.

Mellet v Ireland is a finding from the United Nations Human Rights Committee in 2016 that the Republic of Ireland's abortion laws violated human rights and the International Covenant on Civil and Political Rights by banning abortion in cases of fatal foetal abnormality and by forcing her to travel to the United Kingdom for an abortion.

References

  1. 1 2 3 4 5 6 7 8 9 10 A, B and C v. Ireland( ECtHR 2010), Text .
  2. ↑ O'Brien, Carl (10 December 2009). "'Moral values' of abortion law defended". The Irish Times . Archived from the original on 19 October 2012. Retrieved 10 December 2009. THE GOVERNMENT robustly defended Ireland's abortion restrictions at the European Court of Human Rights yesterday, insisting they are based on "profound moral values embedded in Irish society".
  3. ↑ The NGOs included the "Irish Family Planning Association" (IFPA), the Irish branch of the International Planned Parenthood Federation (see media briefing Archived 26 July 2011 at the Wayback Machine ), the "Center for Reproductive Rights", "Doctors for Choice", the "British Pregnancy Advisory Service" and the "International Reproductive and Sexual Health Law Programme Archived 28 December 2010 at the Wayback Machine ". These organisations, which intervened as third parties, consider that abortion is a "reproductive right", an aspect of sexual "health care".
  4. ↑ See the European Centre for Law and Justice (ECLJ), the Family Research Council (FRC), the Society for the Protection of Unborn Children (SPUC), the Pro-Life Campaign (PLC) and Irish MEP Kathy Sinnott.
  5. ↑ 410 U.S. 113 (1973)
  6. ↑ DeBreadun, Deaglan (30 November 2011). "Minister sets up expert group on abortion rights". The Irish Times.
  7. ↑ "Taoiseach: Expert group delivered abortion report last night". Breaking News.ie. 14 November 2012. Retrieved 10 March 2017.
  8. ↑ "Taoiseach: Expert group delivered abortion report last night". Irish Examiner. 14 November 2012. Retrieved 10 March 2017.
  9. ↑ Lynch, Suzanne (4 December 2014). "Council of Europe closes case against Ireland on abortion". The Irish Times .

Documents

Commentaries

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.