IT WAS always going to end this way. The failure of successive governments to legislate for the X case by providing limited abortion in this State where there is a real and substantial risk to the life of the mother has come back to haunt the political parties in the run-up to the general election campaign. It was always only a matter of time until the right test case came along. We are in playback time.
In its important ruling yesterday on A, B and C v Ireland the European Court of Human Rights (ECHR) has been careful once again not to acknowledge a right in European law to abortion. Member states of the 47-strong Council of Europe retain a “wide” discretion, or “margin of appreciation”, to determine their own position. But where states do decide that abortion may be permitted, albeit heavily circumscribed, they have an obligation to ensure women can vindicate that right. This State, in one of the three cases, clearly did not do so.
Of the three litigants in Strasbourg, the third woman, C, argued that her life was threatened by a pregnancy which might cause a relapse of her cancer, a clear, imminent and substantial threat to her life, the exception provided for in the 1992 Supreme Court ruling on the X case. The ECHR found in C’s favour that, because of the failure of the State to legislate for that constitutional protection, she realistically could not avail of either appropriate medical consultation or legal options to establish her right to a lawful abortion.
The court observed that there was no explanation from the Government as to why it had failed to act so far – perhaps it was unforthcoming because there is no explanation other than political cowardice or what Minister for Health Mary Harney delicately dignified with the euphemism “no great appetite” for legislation.
The treatment of C, a Lithuanian woman resident in Ireland, was thus found to be in violation of Article 8 (right to private and family life) of the European Convention on Human Rights. Compensation was awarded and the ruling now becomes part of the corpus of Irish law.
Most crucially, the ECHR, as the Irish courts have already done twice, made clear that there is an obligation on the State to legislate for the rights enshrined in Article 40.3.3 of the Constitution. That means amending the “chilling” blanket ban on abortion in the Offences Against the Person Act 1861, a source of legal uncertainty which inhibits both doctors and pregnant women. And it will mean creating a means of ascertaining whether individual women meet the criteria for a legal abortion, perhaps a tribunal or a non-judicial board – neither the High nor Supreme Courts are suitable fora. The Government will also have to clear a way through medical ethics constraints to ensure that at least some doctors and hospitals will be able to perform the small number of abortions likely to be needed.
It took five years for the Norris ECHR ruling legalising homosexuality to be brought into domestic law. It is now 18 years since the X case but will any party, especially the Labour Party, make it a deal-breaker in the election?