Home > Constitution of Ireland, New Judgments and Cases to Watch > Update on A, B and C v. Ireland

Update on A, B and C v. Ireland

While everybody at home was paying attention to the budget, the Irish Times reports that Strasbourg saw the opening day of A, B and C v. Ireland. The webcast of this morning’s hearing is here and Channel 4 News includes a short report including footage of today’s proceedings and an interview with Ruth Fletcher of Keele University here.

There are two main elements to the state’s defence of the Irish legal regime on abortion. First, the Times reports that the Attorney General Paul Gallagher SC  (left) insisted that the country’s abortion laws were based on “profound moral values deeply embedded in Irish society”. Mr Gallagher suggested a broad Irish allegiance to the law as it stands when he said the country’s legal position on abortion had been endorsed in three referendums, as well as being safe-guarded in protocols attached to the Maastricht and Lisbon treaties. However, it is also true to say that the three referendums, while they retained the prohibition on abortion, have steadily narrowed its scope since 1983 while a 2007 Irish Times mrbi poll indicated that Irish attitudes around abortion are considerably softer than the AG would allow.

Second, Mr Gallagher described the women in the case as seeking to undermine the fundamental order of things as between the courts and the member states by seeking to bring Irish law into line with that of other states. To that end he said that the European Convention on Human Rights has recognised over 60 years the diversity of traditions and values of the member states. He also takes issue with the women’s failure to avail of domestic remedies before coming to Strasbourg.

RTE summarise the argument made by Julie Kay for the women in disputing the Government’s claim that adequate provision is made for abortion under Irish law:

The only option for the three women, she said, was to go outside the State for a ‘clandestine’ abortion.

They had to borrow money from friends or a money lender to travel.

This conflicted with the minimum protection afforded under Article 8 and 14 of the European Convention on Human Rights, she said.

Ms Kay said none of the committees and green papers had changed the legal status of abortion in Ireland since the X Case.

She said the Government’s claim that abortion was technically available in Ireland in extreme life-saving cases was bogus when it was realised that a doctor would lose his licence or face potential life imprisonment if a termination was later found to be unnecessary. [Her point here is connected to the government failure to legislate for abortion, which leaves doctors without any adequate guidance]

Nor were there any statistics provided on how many of these ‘legal’ abortions in Ireland had taken place.

She said there was no effective remedy in the Irish courts since the requirement for a losing party to pay the State’s costs was prohibitive.

Ms Kay said the Government’s reference to the Lisbon Treaty was irrelevant.

She said the three women had faced indignity, stigmatisation and ill-health as a result of having to travel abroad for their abortions.

The European Court of Human Rights is separate from the EU, but because Ireland is a signatory to the European Convention on Human Rights it is obliged to implement its decisions.

The Times notes – in somewhat odd language – that ‘the Attorney General was part of an eight-strong legal team [including] four [nameless] female legal advisors.’ Their names are Christine O’Rourke, Geraldine Luddy, Sarah Farrell and Bernadette McDonnell. Senior Counsel Donal O’Donnell (who was counsel in D v. Ireland) and Brian Murray are also members of the government legal team. The women are represented by Julie Kay and Carmel Stewart SC.

The National Women’s Council of Ireland has reacted to the case by saying:

Irish women have always had to flee this country like criminals to terminate pregnancy. The government seems to believe that now that we have won the right to travel to attend to our reproductive health, that this is the end of the matter. We applaud the courage of the three women who have brought these cases, and the Irish Family Planning Association, which is supporting them, has our full backing.”

By contrast the Association of Catholic Lawyers have adopted rhetoric familiar from the outer fringes of the Lisbon Treaty debates:

But Johanna Higgins, co-founder of the Association of Catholic Lawyers of Ireland, told the BBC’s World Today programme that a ruling against Ireland would be an infringement of its ability to decide its own laws.

“Whatever the human rights aspects are of this, abortion is illegal in Ireland because it is a criminal offence,” she said.

“If I were in any country and this were to go against Ireland, I would be very concerned that the Europeans feel they can step into domestic law.”

No ruling is expected in the case until next year.

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  1. pmcauliffe
    December 9, 2009 at 6:30 pm

    Catholic focus groups on the Lisbon treaty willingly misled people and distorted facts. To say “Whatever the human rights aspects are of this, abortion is illegal in Ireland because it is a criminal offence…… If I were in any country and this were to go against Ireland, I would be very concerned that the Europeans feel they can step into domestic law” does none of those things. It states what the law is (indeed, this forms part of A, B and C’s core argument), while there is nothing misleading in saying the European Council interferes with domestic law (this is of course by A, B and C are taking the case). It is the ECtHR’s raison d’etre, for good or ill.

  2. December 9, 2009 at 6:40 pm

    I don’t think I suggested it was misleading. What is familiar is the rhetoric about “the [unspecified] Europeans” coming in the night to interfere in our affairs, as if our acceptance of the Charter, and our enactment of legislation to secure its position as against domestic law had been something other than legitimate exercises of sovereignty. What is also familiar is the gross oversimplification of the issues, as if the Association of Catholic Lawyers’ target audience is too stupid to understand the nature of the interaction between national and domestic law. “Whatever the human rights aspects are of this, abortion is illegal in Ireland because it is a criminal offence”. What a sentence. To say “Whatever the human rights aspects…” when you’re talking about a case in the Strasbourg Court… and to use the words ‘illegal’ and ‘criminal’ as if illegality and crime were concepts set in stone. If that’s the best they can do, they’re not worthy of the debate. Where are the mainstream Catholic voices/lawyers in all of this and why are they allowing this group to be interviewed on their behalf as the voice of tradition?

  3. December 10, 2009 at 2:17 am

    I note the Irish Times has given the 4 lady lawyers their names in its update this morning. All is now right with the world.

  4. pmcauliffe
    December 10, 2009 at 8:51 am

    Their omission was a bit eyebrow-raising alright – the Old Lady of D’Olier Street seems stunned into silence by the fact that some women might find the termination of unborn people a tad ethically knotty. Hopefully Catholic groups will stay out of the debate, their credibility is shot after the reports and Lisbon. That said, there is little sign of our professed secular liberals taking up the slack either. Ho hum ….

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