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Report of the Expert Group on the Judgment in the A, B and C v. Ireland Case: Statements (Resumed) (Continued)

Thursday, 6 December 2012

Dáil Éireann Debate
Vol. 785 No. 3

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Deputy Caoimhghín Ó Caoláin: Information on Caoimhghín Ó Caoláin Zoom on Caoimhghín Ó Caoláin The publication of the Report of the Expert Group on the Judgment in A, B and C v. Ireland should mark the final stage before legislation in line with the X case judgment is initiated, debated and enacted by the Oireachtas. In time the publication of this report will always be associated with the tragic death of Savita Halappanavar, a tragedy that once more placed the issue of abortion high on the political agenda and in public consciousness. The courage of Ms Halappanavar's husband, Praveen, and family in speaking out should be commended and we offer them our continuing condolences.

  Coincidence or not, the publication of the report in the immediate aftermath of the tragic death in Galway university hospital has concentrated minds on the issue and this concentration needs to be maintained in order that appropriate action will follow. The public consideration by society of the very difficult and fraught issue of abortion has been punctuated by tragedies. From the X case in 1992 to Savita Halappanavar in 2012, we have seen women in a variety of very difficult circumstances bringing legal challenges, all of which are cited in this report. These cases represent only the tip of the iceberg as they are only the visible manifestation of the experiences of countless women over the past 20 years and more.

  The authors are to be commended on a clear report that gives an overview of the current legal provisions on the termination of pregnancy in this State and the historical background to the legal developments regarding abortion that have taken place over the past three decades. In a cogent manner the report sets out principles for the implementation of the judgment of the European Court of Human Rights in the A, B and C v. Ireland case. It sets out proposed procedural options for determining if and when termination is lawful, options for decision making by doctors and an appeals process. Finally, and crucially, it sets out options for how this should be implemented in law.

  The judgment of the European Court of Human Rights confirmed that there is an imperative to put into legal effect the judgment of the Supreme Court in the X case. The European court found that there was no accessible and effective procedure to enable Ms C to establish whether she qualified for a lawful termination of pregnancy in accordance with Irish law. Why is this the case? The reason, as the court accepted, is that Article 40.3.3° of the Constitution, as interpreted by the Supreme Court in the X case, provides that it is lawful to terminate a pregnancy if it is established that there is a real and substantial risk to the life - as distinct from health - of the mother, which can only be avoided by a termination of the pregnancy. Therefore, the State is in breach of the European Convention on Human Rights in failing to give effect to the right identified by the Supreme Court in the X case.

  In setting out the current legal position, the report reminds us of what have been described as the chilling words and effect of the Offences Against the Person Act 1861 and its blanket criminalisation of all terminations of pregnancy. Anyone responsible for a termination under this Act is "guilty of a felony and being convicted thereof shall be liable to be kept in penal servitude for life."

  The report recites the sorry saga of the 1983 amendment and the legal battle that had to be fought to establish the rights to travel and information, culminating in referendums and legislation which provide for these rights. It is important to recall, as the report does, that "X" was a 14 year old girl who became pregnant as a result of rape and was put through the additional trauma of a High Court injunction to restrain her from leaving the State for a termination of the pregnancy. It is important also to recall that the Supreme Court judged in the X case that if it were established as a matter of probability that there was a real and substantial risk to the life as distinct from the health of the mother and that this real and substantial risk could only be averted by the termination of the pregnancy, such a termination is lawful. Crucially, the court also found that the threat of suicide constituted a real and substantial risk to the life of the mother.

  The immediate result of the X case was the lifting of the injunction to enable the young girl to travel abroad. Any other outcome would have outraged the vast majority of people in this country and led to a regime in which the State operated effectively as an internment camp for pregnant women, release being possible only if they could prove they were not travelling abroad to terminate their pregnancy.

  The 1992 referendum followed, allowing for the right to travel and to information. In 1992 and again in 2001, the electorate in referendums rejected proposals to exclude the risk of suicide as a ground for lawful termination. Thus, more than a decade ago, and long before the A, B and C case was initiated, the clear obligation for the Oireachtas to legislate in line with the X case judgment, including the threat of suicide as a real and substantial risk to the life of the mother, was confirmed. As well as the referendums, there was the 1996 Constitution review group, the 1999 Green Paper on abortion and the all-party Oireachtas committee on abortion which reported in 2000. Following the defeat of the 2001 referendum, there was legislative inaction as successive Governments again failed to face up to their responsibilities.

  The A, B and C case, begun in 2005 with judgment delivered in December 2010, effectively reaffirmed the Supreme Court judgment in the X case. The absence of legislative implementation of these judgments has created very dangerous grey areas in which, as we know all too well, women can die. The European Court of Human Rights judged that there is a "striking discordance between the theoretical right to lawful abortion in Ireland on grounds of a relevant risk to a woman's life and the reality of its practical implementation." The real dangers this position creates were shown in the case of Miss D in 2007. In that case the Health Service Executive prevented a 17 year old girl in its care from leaving the State to have an abortion and even notified the Garda that she was not permitted to leave. The court ruled that the actions of the HSE were without foundation in law and vindicated Miss D's right to travel. If a young woman could face such denial of her rights in circumstances where the law was very clear and had even been affirmed in a referendum, how much more danger must women face when they are legally entitled to a termination in line with the X case judgment, albeit in the absence of the required legislation?

  This matter is addressed explicitly in the report which states: "Indeed, while the constitutional provision in Article 40.3.3° (as interpreted by the Supreme Court in the X case) qualified sections 58 and 59 of the 1861 Act, those sections have never been amended, so that, arguably, they remain in force with their absolute prohibition on abortion and associated serious criminal offences, thereby contributing to the lack of certainty for a woman seeking a lawful abortion in Ireland." This also has implications for the medical and legal professions.

  The case for legislation now is compelling and the report makes it even more compelling. The five obligations of the State, as set out in the report are to provide effective and accessible procedures to establish a woman's right to an abortion as well as access to such treatment; to establish criteria or procedures in legislation or otherwise for measuring or determining the risk to her life; to provide precision as to the criteria by which a doctor is to assess that risk; to set up an efficient independent review and appeals system; and to address sections 58 and 59 of the Offences Against the Person Act 1861.

  The four principles for the implementation of the European court judgment are that the entitlement to have the right to a lawful termination of pregnancy ascertained should be established; the State's obligations under Article 40.3.3° should be reflected in the options for implementation; termination should be considered a medical treatment regardless of whether the risk to the life of the woman arises on physical or mental health grounds; and it will always be a matter for the patient to decide if she wishes to proceed with a termination following a decision that it is clinically appropriate.

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