Human Rights Watch (HRW) welcomes the opportunity to make this submission to the Joint Committee on Health and Children in connection with its upcoming hearings on government action to comply with the European Court of Human Rights’ (ECtHR) judgment in A, B, C v. Ireland.
In 2010 HRW investigated the human rights impact of Ireland’s restrictive abortion laws and policies, publishing its conclusions in a report, “A State of Isolation: Access to Abortion for Women in Ireland”.We found that Ireland’s current approach to abortion conflicts with its international human rights obligations in a number of respects.Women and girls in Ireland facing crisis pregnancies and serious health risks may be denied full access to appropriate and lawful medical treatment and health care, accurate medical information, and objective and complete advice on their medical treatment options. Due to length limitations, this executive summary focuses on the central concern in A, B, C v. Ireland: the inaccessibility to abortion services in Ireland in circumstances in which a woman or girl is lawfully entitled under Irish law to terminate a pregnancy. Other key issues addressed in the full report and its recommendations, attached with this summary, include obstacles to accurate information on abortion; the disproportionately harmful impact of abortion restrictions on poor and marginalized women; and the lack of government monitoring and accountability with respect to abortion.
Lack of Access to Lawful Abortion in Ireland
Although abortion in Ireland is criminalized in most circumstances, with potential penalties of up to life in prison for both patients and service providers, it is lawful to obtain an abortion where it is necessary to save the life of the pregnant woman or girl, including as a result of a risk of suicide. However, Human Rights Watch has interviewed physicians and other service providers in Ireland to ascertain the availability of legal abortion in Ireland and as of 2010 was unable to document a single case in which an abortion had been performed when a woman or girl’s life was in danger. It was precisely the lack of access to lawful abortion for girls and women with life-threatening pregnancies that was deemed to violate Ireland’s obligations under the European Convention on Human Rights.
Successive governments have failed to safeguard in law when and how a woman or girl with a life-threatening pregnancy may exercise her right to a lawful abortion, leaving medical providers at a loss. The denial or lack of certainty around access to abortion when a woman or girl’s life is in danger may lead to death and serious injury, in violation of the rights to life and bodily integrity. The mental anguish and distress caused by substantial and burdensome barriers to accessing abortion may also, in some circumstances, amount to cruel, inhuman, and degrading treatment.Although comprehensive reform on access to abortion in Ireland would ultimately require a constitutional amendment, even within the confines of Article 40.3.3 of the Irish Constitution, there are a number of immediate steps that government should, and under human rights law must take, which would greatly improve the lives of women and girls. These include ensuring unfettered access to life-saving abortions for women and girls including those at risk of suicide, post-abortion care, and screening for fetal abnormalities. HRW welcomes that the Report of the Expert Group on the Judgment in A, B, C v. Ireland sets out clearly the principles that the right to lawful termination of pregnancy must be ascertained, and effective, accessible procedures be established; that termination of a pregnancy is a medical treatment and that the decision to proceed or not with such treatment when lawful is solely for the woman or girl. In this regard the position of the Expert Group on the need for recourse for the woman or girl, at her request, to an independent, competent review panel that can render a timely decision is very important, and an important safeguard required by the judgment in A, B, C v Ireland.
It is critical that the right to lawful termination of pregnancy is addressed through legislation and regulation.HRW has extensively documented how the failure to provide adequate and clear legal and administrative guidance when access to legal abortion is restrictive, but may be permitted in limited circumstances (such as where a doctor decides that the pregnancy is life-threatening or is the result of a rape), leads to obstacles and uncertainty that deny women and girls access to lawful treatment and violate human rights.Our findings on violations caused by lack of a robust framework are reflected in the judgments of the ECtHR on this matter, and also in the conclusions of other expert human rights bodies to which Ireland is accountable. For example, the UN Human Rights Committee examined the situation of a young girl in Peru who was not able to access a legal abortion in a legislative context which is similar to that of Ireland. The Committee held that there had been numerous violations of the girl’s rights as a result of the failure to ensure access to what was a legal abortion.
Human rights law requires that procedures for determining entitlement and access to legal abortion do not create arbitrary barriers that place unnecessary burden on any woman or girl in a crisis pregnancy where her life may be in danger. HRW urges the committee to have regard to the 2011 report of the UN Special Rapporteur on Health on the interaction between criminal laws and other legal restrictions relating to sexual and reproductive health and the right to health.In paragraph 24 the Special Rapporteur (who also visited Ireland in December 2012 and called for decriminalization of abortion) notes that legal requirements which contribute to making legal abortions inaccessible include that abortions be approved by more than one health-care provider. He also notes that conscientious objection laws may be misused to create barriers to access to legal medical treatment if health-care providers and ancillary personnel are allowed to refuse to provide information about procedures and referrals to alternative facilities and providers. While the human rights framework accommodates conscientious objection, there are limits. For example, conscience cannot justify a refusal to perform a life-saving abortion when no other suitable alternatives exist for a woman to obtain the abortion. Governments have a responsibility to ensure that women and girls can obtain the health care they need and that reasonable alternatives exist when practitioners wish to invoke conscientious objection rules.
HRW urges the Committee to ensure that Ireland’s human rights obligations are central when assessing what effective and accessible procedures are established and, in accordance with Ireland’s human rights obligations, that the life and health of the woman or girl is the primary consideration in determining procedures and safeguards for realizing access to the right to lawful abortion.
Ireland is a party to and legally bound by a number of human rights treaties which all contain relevant guarantees and obligations on the rights of women and girls. These include the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of Discrimination against Women (CEDAW), the Convention Against Torture (CAT) and the Convention the Rights of the Child (CRC).
See the ECtHR in P and S v Poland, judgment of October 30, 2012 in which it found that a young girl entitled to a legal abortion in Poland, had been subjected to prohibited ill-treatment by medical and law enforcement authorities, paras 168-9. The UN Committee against Torture has also described the inability to access abortion in a situation of a life threatening pregnancy as a violation of human rights. See, Consideration of Reports Submitted by States Parties under Article 19 of the Convention: Concluding Observations of the Committee against Torture: Nicaragua,” CAT/C/NIC/CO/1, June 10, 2009, para. 1. The Committee has urged Ireland to “clarify the scope of legal abortion through statutory law and provide for adequate procedures to challenge differing medical opinions as well as adequate services for carrying out abortions in the State party, so that its law and practice is in conformity with the Convention.” Committee against Torture, concluding observations on Ireland, UN Doc AT/C/IRL/CO/1. (2011), para. 26.
The ECtHR has stressed that as time is of critical importance in a woman’s decision to terminate a pregnancy or not, the procedures in place should ensure that such decisions are taken in good time. See e.g. P and S v Poland para. 11.
These reports include: “Decisions Denied: Women’s Access to Contraceptives and Abortion in Argentina”, June 2005; “Mexico: The Second Assault. Obstructing Access to Legal Abortion After Rape in Mexico”, March 2006; “My Rights, and My Right to Know. Lack of Access to Therapeutic Abortion in Peru”, July 2008; “Illusions of Care , Lack of Accountability for Reproductive Rights in Argentina”, August 2010. These can be accessed on HRW website at https://www.hrw.org/by-issue/publications/708.
The Human Rights Committee oversees the implementation of the International Covenant on Civil and Political Rights. See KL v Peru (2005), Comm. No. 1153/2003, UN Doc. CCPR/C/85/D/1153/2003.
See report of the Special Rapporteur the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, UN Doc. A/66/254, August 3, 2011. This report is pertinent to Ireland’s obligations on the right to health under ICESCR, CRC and CEDAW.
 See the ECtHR: “States are obliged to organise their health service system in such a way as to ensure that the effective exercise of freedom of conscience by health professionals in a professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation”; R.R. v. Poland, no. 27617/04, May 26, 2011, para. 206. The CEDAW Committee has stated that women’s human rights are infringed where hospitals refuse to provide abortions due to the conscientious objection of doctors. In concluding observations on Poland, the CESCR and the HRC have expressed concern about the use of conscientious objection by medical practitioners who refuse to carry out legal abortions. See CEDAW Committee concluding comments on Croatia, UN Doc. A/53/38, Part I (1998), para. 109; and Italy, UN Doc. A/52/38/Rev.1, Part II (1997), para. 353. CESCR, concluding observations on Poland, UN Doc. E/C.12/POL/CO/5 (2009), para. XXXX; and HRC, concluding observations on Poland, UN Doc. CCPR/CO/82/POL (2004), para. 8.