CASE OF A, B AND C v. IRELAND (5)

As I've mentioned, Applicant C actually won her case, though the relatively low compensation she was awarded probably did not even pay her legal expenses. Then again, it looks as if this may have been due to poor documentation of expenses by the lawyers rather than anything else; see para 282.

As you'll recall, C travelled to England, 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 fetus if she were to have chemotherapy during the first trimester. The cancer went into remission and C 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 fetus. She therefore researched the risks on the internet.

Given her 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.

On these facts, an abortion would actually have been legal in Ireland - the woman's life was endangered by her pregnancy. It seems, then, from one point of view, that C had the weakest case: Ireland's anti-abortion law did not prevent her having an abortion in Ireland, as it did with A and B, whose abortions on Irish territory would have been illegal. So why was she the one who succeeded? Why didn't the court see it this way?

Partly, because, as we've seen, the anti-abortion law was not struck down. Putting it bluntly, A and B were stuffed, because the gist of their claims was really that abortions in their circumstances should not have been illegal in Ireland. Once they failed on that, they really had nothing more in their amouries.

But C was able to argue that the Irish authorities had pursued a course of conduct that hindered her in obtaining an abortion that would actually have been legal. She argued that the state had a positive responsibility (or she had a positive right), under Article 8, to measures to protect her enjoyment of her private life - or some such thing. I'm quite sceptical about the use of Article 8 or anything similar to give positive rights to citizens. Such provisions should mainly protect the citizens from state action. If the state is going to be under a positive obligation to make certain resources or information, etc., available, this should be expressed clearly and separately, and my general view is that the detail of what positive benefits the state should provide is best left to the political process.

However, it is well established in the European jurisprudence that Article 8 provides some level of positive rights against the state, and it makes sense in this particular context. If the state enacts a sweeping law that interferes with sexual and reproductive privacy, the least it can do is provide a transparent regime so that people who are adversely affected (in this case to the extent of a woman's life being in danger) can know exactly where they stand. Ireland had not been done, or so the court concluded. E.g., it had enacted no statutory provision setting out when a woman could legally obtain an abortion.

The court decided the following question in C's favour: "whether there is a positive obligation on the State to provide an effective and accessible procedure allowing the third applicant to establish her entitlement to a lawful abortion in Ireland and thereby affording due respect to her interests safeguarded by Article 8 of the Convention."

No framework was established in Ireland for a woman to be able to determine and prove that her intended abortion was legal - short of initiating a constitutional action in the courts, or, I suppose, of allowing herself to be arrested and then defending herself at the trial on the basis that there was a real and substantial risk to her life - not "merely" health - which could only be avoided by terminating the pregnancy. In the end, C was awarded an after-tax sum of 15,000 Euros, and Ireland will now have to put some better provisions and procedures in place for women who want certainty about whether their contemplated abortions are legal.

I suppose this aspect of the case is a good outcome, though one might ask why, once everything else is determined against the woman, she shouldn't be required to raise the relevant defence if arrested and brought to trial. How is this different from other crimes where there is a statutory, common law, or constitutional defence? Be that that as it may, C succeeded in getting some money for what she'd suffered from the lack of a ready means of vindicating her right to an abortion in Ireland, and Ireland will now have to establish a more transparent and user-friendly regime for women who want abortions to be able to ascertain their legal rights and obligations.

But that's very much a consolation prize. Ireland gets to retain its sweeping prohibition of abortions - at all stages of gestation, and even if the woman's health (but not life) is endangered - backed up by a life sentence. That's highly illiberal, and Ireland is a lousy excuse for a liberal democracy. Finally, you're naive if you don't draw a connection with the power, within Irish politics and society, of the Roman Catholic Church. As always, that organisation is an enemy of individual liberty; it will seek to impose its moral views through state coercion wherever it can.