''A, B and C v Ireland'' is a landmark 2010 case of the
European Court of Human Rights
The European Court of Human Rights (ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights (ECHR). The court hears applications alleging that a co ...
on the
right to privacy
The right to privacy is an element of various legal traditions that intends to restrain governmental and private actions that threaten the privacy of individuals. Over 185 national constitutions mention the right to privacy.
Since the globa ...
under
Article 8. The court rejected the argument that article 8 conferred a right to
abortion
Abortion is the early termination of a pregnancy by removal or expulsion of an embryo or fetus. Abortions that occur without intervention are known as miscarriages or "spontaneous abortions", and occur in roughly 30–40% of all pregnan ...
, but found that
Ireland
Ireland (, ; ; Ulster Scots dialect, Ulster-Scots: ) is an island in the North Atlantic Ocean, in Northwestern Europe. Geopolitically, the island is divided between the Republic of Ireland (officially Names of the Irish state, named Irelan ...
had violated the
European Convention on Human Rights
The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is a Supranational law, supranational convention to protect human rights and political freedoms in Europe. Draf ...
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.
Facts
Three anonymous women, recorded in the case as "A, B and C" travelled to the
United Kingdom
The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Northwestern Europe, off the coast of European mainland, the continental mainland. It comprises England, Scotlan ...
to have abortions, because abortions were unlawful in Ireland.
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
Miscarriage, also known in medical terms as a spontaneous abortion, is an end to pregnancy resulting in the loss and expulsion of an embryo or fetus from the womb before it can fetal viability, survive independently. Miscarriage before 6 weeks ...
. 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
Chemotherapy (often abbreviated chemo, sometimes CTX and CTx) is the type of cancer treatment that uses one or more anti-cancer drugs (list of chemotherapeutic agents, chemotherapeutic agents or alkylating agents) in a standard chemotherapy re ...
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
In a legal context, a chilling effect is the inhibition or discouragement of the legitimate exercise of natural and legal rights by the threat of legal sanction. A chilling effect may be caused by legal actions such as the passing of a law, th ...
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 would need 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
The Constitution of Ireland (, ) is the constitution, fundamental law of Republic of Ireland, Ireland. It asserts the national sovereignty of the Irish people. It guarantees certain fundamental rights, along with a popularly elected non-executi ...
, 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 most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, high (or final) court of appeal, and court of final appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of ...
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. 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, while various
anti-abortion
Anti-abortion movements, also self-styled as pro-life movements, are involved in the abortion debate advocating against the practice of abortion and its Abortion by country, legality. Many anti-abortion movements began as countermovements in r ...
groups intervened to support Ireland.
Judgment
The Court held that "Article 8 cannot ... be interpreted as conferring a right to abortion".
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.
In this regard it noted the "significant chilling"
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".
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"
and that there was consensus 'amongst a substantial majority of the Contracting States'
regarding the legality of abortion, the Court did "not consider that this consensus decisively narrows the broad margin of appreciation of the State."
Thus Ireland had a broad margin of appreciation to maintain its existing laws where they were sufficiently clear.
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
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all Federal tribunals in the United States, U.S. federal court cases, and over Stat ...
's landmark ruling in the case ''
Roe v Wade'', 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.
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. The expert group reported to the Department of Health the night before news of the
Death of Savita Halappanavar broke.
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.
See also
*
European Convention on Human Rights
The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is a Supranational law, supranational convention to protect human rights and political freedoms in Europe. Draf ...
*
Article 8 of the European Convention on Human Rights
Article 8 of the European Convention on Human Rights provides a right to respect for one's " private and family life, his home and his correspondence", subject to certain restrictions that are "in accordance with law" and "necessary in a democrat ...
* ''
Roe v Wade''
*
Protection of Life During Pregnancy Act 2013
*
Sheila Hodgers
*
Eighth Amendment of the Constitution of Ireland
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 pe ...
*
Abortion in the Republic of Ireland
*
Death of Savita Halappanavar
* ''
Attorney General v. X''
* ''
D v Ireland''
* ''
PP v. HSE''
References
External links
Documents
ECtHR Judgment (full text)ECtHR Press release, 16.12.2010Joint Amicus Curiae Brief by the Center for Reproductive Rights and the International Sexual and Reproductive Health Law ProgrammeJoint Amicus Curiae Brief by the European Center for Law and Justice, the Family Research Council and the Society for the Protection of Unborn Children
Commentaries
* Department of the Taoiseach,
, 16 December 2010
* Center for Reproductive Rights, "[http://reproductiverights.org/en/press-room/european-court-of-human-rights-rules-that-ireland-abortion-ban-violates-human-rights-but- European Court of Human Rights Rules that Ireland Abortion Ban Violates Human Rights, But Doesn't Go Far Enough]", Press release 16 December 2010
* European Center for Law and Justice,
A. B. C. Irish abortion case: No human right to abortion under the Convention, says the European Court of Human Rights, Press release 16 December 2010
* Society for the Protection of Unborn Children,
Ireland must reject European court's abortion judgment, says intervener SPUC, Press Release 16 December 2010
* J. C. von Krempach,
A Comment on A, B and C vs Irelandturtlebayandbeyond.org* P. Ronchi, "A, B and C v Ireland: Europe's Roe v Wade still has to wait?", Law Quarterly Review, 2011, 127(Jul), 365–36
{{Abortion in the Republic of Ireland
Republic of Ireland abortion case law
Article 2 of the European Convention on Human Rights
Article 8 of the European Convention on Human Rights
European Court of Human Rights cases involving Ireland
2010 in the Republic of Ireland
2010 in case law