The unfolding story of the reform of abortion law in Ireland has featured several times in this blog, most recently here. On Tuesday Dáil Éireann held a short debate on the Report of the Expert Group on the judgment of the European Court of Human Rights in A, B and C v Ireland. The statement was repeated in the Seanad yesterday, 6 December.
The Minister for Health, Deputy James Reilly, said that the Government was committed to allowing all Members of the two Houses the opportunity to make a statement on the issue. Following this discussion, the Government would make a decision before the Dáil went into recess on the option to be pursued in order to implement the judgment in A, B and C v Ireland 25579/05  ECHR 2032 (16 December 2010) and that a further opportunity for discussion would be provide by public hearings to be held by the Joint Committee on Health and Children in the New Year. He re-emphasised that though it was a matter on which most people held strong personal views, the Government had consistently stated its commitment to implement the judgment of the ECtHR.
In a helpful exposition of the principles behind the Report, he reiterated that the Government was committed to addressing the issue within the confines of Article 40.3.3° of the Constitution and its interpretation by the Supreme Court in Attorney General v X  IESC 1;  1 IR 1 (in which the Court held that where, on the balance of probabilities there was a real and substantial risk to the life, as distinct from the health, of the mother and that such risk – including the risk of suicide – could only be averted by the termination of her pregnancy, such termination was lawful). He reminded the House that the constitutional and legal provisions did not cover abortion in the case of pregnancy arising from rape or incest and that they had not, therefore, been addressed by the Expert Group or by the Government itself.
The Expert Group maintained that the State was obliged:
- to provide effective and accessible procedures to establish a woman’s right to an abortion as well as access to such treatment;
- to establish criteria or procedures in legislation or otherwise for measuring or determining the risk;
- to provide precision as to the criteria by which a doctor is to assess that risk;
- to set up an efficient independent review system where a patient disputes her doctor’s refusal to certify that she is entitled to a lawful abortion or where there is a disagreement between doctors as to whether this treatment is necessary; and
- to address sections 58 and 59 of the Offences Against the Person Act 1861.
“In essence, the Expert Group indicates that the State is under legal obligation to put in place and implement a legislative or regulatory regime providing effective and accessible procedures whereby pregnant women can establish whether they are entitled to a lawful abortion in Ireland. Furthermore, it asserts that: ‘It would obviously be insufficient for the State to interpret the court’s judgment as requiring only a procedure to establish entitlement to termination without also giving access to such necessary treatment.’.”
The Expert Group had adopted four principles in its deliberations, which, he believed, provided a clear and humane framework on which to base lawful termination of pregnancy:
Principle 1. The entitlement to have the right to lawful termination of pregnancy ascertained should be established.
Principle 2. The state’s constitutional obligations under Article 40.3.3° should be reflected in the options proposed to implement this judgment.
Principle 3. Termination of pregnancy should be considered a medical treatment regardless of whether the risk to the life of the woman arises on physical or mental health grounds.
Principle 4. It will always be a matter for the patient to decide if she wishes to proceed with a termination following a decision that it is clinically appropriate medical treatment.
Though the Report supported the Supreme Court’s judgment in Attorney General v X as the correct criteria to assess whether or not a woman was entitled to a lawful termination of pregnancy it rejected the argument that that judgment established a right to an abortion at any gestational age. The Report set out four options for the implementing the ECtHR judgment in A, B and C v Ireland: guidelines alone, regulations alone, primary legislation alone and primary legislation coupled with regulations.
The Minister reiterated the Government’s firm commitment to implementing the judgment in A, B and C but emphasised that that did not mean abortion on demand.
Pingback: Religion and Law roundup: 9th December | Law & Religion UK
Update: The Department of Health announced on 18 December that the implementation of the judgment in A, B and C by way of legislation with regulations – the fourth option put forward by the Expert Group – offers the most appropriate method for dealing with the issue. The Oireachtas Committee on Health and Children will hold hearings on the matter in January and the drafting of the Heads of a General Scheme of a Bill will take place after those hearings. After the completion of Draft Heads of a Bill “there will be comprehensive debate in the Oireachtas and beyond before the Bill and regulations are finalised”.