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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019) and AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021).

Sunday, December 19, 2010


As promised, I'm going to discuss this case at greater length, but I won't be able to do so in one hit, simply because it's complicated. Here's a first instalment.

The case involved three women, known as A, B, and C (their identities have been withheld by the courts) who had all travelled from Ireland to the UK in order to have abortions. Only one woman, C, was ultimately successful, so it's worthwhile examining their different circumstances. It's also useful getting an idea of some of the circumstances of women who are unable to obtain abortions in Ireland because of its draconian anti-abortion laws (which carry a life sentence for a woman who has an abortion), and choose to travel to the UK. With these facts in front of us we can get to the messy legal (and the strange-seeming way it had to be resolved) in later posts.

One thing that should be made clear at this stage, however, is that the case was not really about the legality, under European human rights law, of Ireland's anti-abortion law. We'll get to the detail of that in a later post, but keep in mind that this case was about the treatment of the respective applicants rather than about any serious prospect of Ireland's prohibition of abortion being struck down. Note that C was ultimately successful because Ireland's practices frustrated her in obtaining what would actually have been a legal abortion, given that her life was in danger from the pregnancy. That is the only circumstance in Ireland in which abortion is legal.

The following are the facts of relating to the applicants, taken largely verbatim, but with some editing, from relevant paragraphs of the judgment.

Applicant A travelled to England for an abortion in 2005 at a point when she was 9½ weeks pregnant. She had become pregnant unintentionally, believing her partner to be infertile. At the time she was unmarried, unemployed and living in poverty. She had four young children. The youngest was disabled and all children were in foster care as a result of problems A had experienced as an alcoholic. She had a history of depression during her first four pregnancies, and was battling depression at the time of her fifth pregnancy. During the year preceding her fifth pregnancy, she had remained sober and had been in constant contact with social workers with a view to regaining custody of her children. She considered that a further child at that moment of her life would jeopardise her health and the successful reunification of her family.

Delaying the abortion for three weeks, she borrowed the minimum amount of money for treatment in a private clinic and travel from a money lender at a high interest rate. For someone in her position, travel to England created a significant financial burden. She felt she had to travel to England alone and in secrecy, without alerting the social workers and without missing a contact visit with her children. She travelled back to Ireland by plane the day after the abortion for her contact visit with her youngest child. While she had initially submitted that she was afraid to seek medical advice on return to Ireland, she subsequently clarified that, on the train returning from Dublin she began to bleed profusely, and an ambulance met the train. At a nearby hospital she underwent a dilation and curettage. She claimed she experienced pain, nausea and bleeding for weeks thereafter but did not seek further medical advice.

Applicant B travelled to England for an abortion in early 2005, at a time when she was 7 weeks pregnant. She had become pregnant unintentionally. She had taken the “morning-after pill” and been advised by two different doctors that there was a substantial risk of an ectopic pregnancy (a condition which cannot be diagnosed until 6-10 weeks of pregnancy). She decided to England for an abortion since she could not care for a child on her own at that time of her life. She waited for some weeks until the counselling centre in Dublin opened after Christmas. She had difficulty meeting the costs of the travel and, not having a credit card, used a friend’s credit card to book the flights. By the time she travelled to England, it had been confirmed that it was not an ectopic pregnancy. Once in England she did not list anyone as her next of kin or give an Irish address so as to be sure her family would not learn of the abortion.

She travelled alone and stayed in London the night before the procedure to avoid missing her appointment as well as the night of the procedure, as she would have arrived back in Dublin too late for public transport and the medication rendered her unfit to drive home from Dublin airport. The clinic advised her to inform Irish doctors that she had had a miscarriage. On her return to Ireland she started passing blood clots and two weeks later, being unsure of the legality of having travelled for an abortion, sought follow-up care in a clinic in Dublin affiliated to the English clinic.

Applicant C travelled to England to have an abortion in March 2005, believing she could not establish her right to an abortion in Ireland. She was in her first trimester of pregnancy at the time.  Prior to that, she had been treated for 3 years with chemotherapy for a rare form of cancer. She had asked her doctor before the treatment about the implications of her illness as regards her desire to have children and was advised that it was not possible to predict the effect of pregnancy on her cancer and that, if she did become pregnant, it would be dangerous for the foetus if she were to have chemotherapy during the first trimester. The cancer went into remission and the applicant unintentionally became pregnant. She was unaware of this fact when she underwent a series of tests for cancer, contraindicated during pregnancy. When she discovered she was pregnant, she consulted her GP and several medical consultants. She alleged that, as a result of the chilling effect of the Irish legal famework, she received insufficient information as to the impact of the pregnancy on her health and life and of her prior tests for cancer on the foetus. She therefore researched the risks on the internet.

Given the uncertainty about the risks involved, she travelled to England for an abortion. She wanted a medical abortion (drugs to induce a miscarriage) as her pregnancy was at an early stage but that she could not find a clinic which would provide this treatment as she was a non-resident and because of the need for followup. She therefore alleged she had to wait a further 8 weeks until a surgical abortion was possible. On returning to Ireland after the abortion, she suffered complications of an incomplete abortion, including prolonged bleeding and infection. She alleged that doctors provided inadequate medical care, but this was not accepted by the court.

The court observed that A travelled for an abortion for reasons of health and well-being, B for "well-being reasons"; and C as she mainly feared her pregnancy constituted a risk to her life. The court concluded that each applicant felt the weight of a considerable stigma prior to, during and after their abortions: they travelled abroad to do something which (supposedly) "went against the profound moral values of the majority of the Irish people" and which was, or (in the case C) could have been, a serious criminal offence. In C's case, she could have obtained a lawful abortion in Ireland, but alleged that Irish law and regulatory practice created a chilling effect and pressured her to travel abroad. Obtaining an abortion abroad constituted a significant source of added anxiety. In general, travelling abroad for an abortion constituted a significant psychological burden on each applicant.

The court found that an abortion would have been physically a less arduous process without the need to travel, notably after the procedure. However, it did not accept various claims made by the applicants that they lacked access to necessary medical treatment in Ireland before or after their abortions.

The next post in this series will get to how Irish law and European human rights law was applied to these facts.

1 comment:

Cogito said...

I'm wondering how it happened that three women went to a country where medical practice is publicly funded and where abortion is licensed and legal (the argument for legality often being to ensure quality care from legitimate practitioners), yet all three experienced what appear to be "botched" abortions. Is there an underground abortion network for "illegal" Irish women?