Many thanks to Mercedes Cavallo, doctoral candidate in the University of Toronto’s Faculty of Law, and a Reproductive Health Law Fellow,  for analyzing these two important cases:

On October 18, 2017, the Irish Oireachtas (Parliamentary) Joint Committee on Abortion recommended 15-2-2 not to fully retain the Eighth Amendment restrictions on abortion.

Irish abortion laws are among the most restrictive in the world and have been condemned by the UN Human Rights Committee in the cases of Whelan v. Ireland and Mellet v. Ireland.  Under the Irish Constitution’s Eighth Amendment, as interpreted by the Supreme Court of Ireland in Attorney General v. X and Others, abortion is a crime and is only permissible when it is established, as a matter of probability, that there is a real and substantial risk to the life, as distinct from the health, of the pregnant woman.

In addition, the “Abortion Information Act” 1995 restricts circumstances in which individuals (including health professionals) can provide information about legal abortion services in Ireland or abroad, and criminalizes “advocating or promoting” the termination of pregnancy.  Due to the constraints of this legal framework, women who need abortions in Ireland usually travel to the United Kingdom, with little information and no financial or psychological support from the State.

In the Whelan and Mellet. cases, the UN’s Human Rights Committee found Ireland non-compliant in denying abortion services and grief counselling to two women who had each been pregnant with a doomed foetus.

Siobhán Whelan, at 20 weeks pregnant, was informed that her foetus had a congenital malformation and would likely die in utero, during labor, or soon after birth. Her obstetrician mentioned that “in another jurisdiction [she] would be offered a termination but obviously not in this country due to Irish law.” The obstetrician expected Ms. Whelan to “continue with the pregnancy, attend ante-natal appointments ‘as normal’ and wait for nature to take its course.” Another doctor gave her a report of the scan, “in case [she] wanted to travel.”  She sought further information about travel, but most agencies could only assist women who were less than 13 weeks pregnant, so she learned about the Liverpool Women’s Hospital through a friend. At significant expense, she arranged babysitting, leave from work and farm relief.  Afterwards, she felt very isolated, and suffers from complicated grief and trauma.

Amanda Jane Mellet was 21 weeks pregnant when she was told that her foetus had congenital defects and would die in utero or shortly after birth.  Hospital staff said only that abortions were not available in Ireland and that some people “choose to travel.” The midwife advised her to contact an Irish family planning organization for information and counseling. Her doctor attempted to dissuade her from travelling to the UK for abortion. Only 12 hours after the abortion, she travelled to Ireland because she could not afford a longer stay in the U.K.  Upon her return, she was denied access to grief counselling. She still suffers from complicated grief and unresolved trauma.

In both cases, the Committee ruled that Ireland had violated the women’s rights to privacy (article 17), equality/non discrimination (article 26) and freedom from cruel, inhuman and degrading treatment (article 7), under the International Covenant on Civil and Political Rights.  To make amends, the Committee required Ireland to pay full reparations to both women, make psychological treatment available to them, and take measures to prevent similar violations in the future.  According to the Committee, “the State party should amend its law on voluntary termination of pregnancy, including if necessary its Constitution, to ensure compliance with the Covenant, ensuring effective, timely and accessible procedures for pregnancy termination in Ireland, and take measures to ensure that health-care providers are in a position to supply full information on safe abortion services without fearing they will be subjected to criminal sanctions” (Mellet,para. 9).

In Mellet, Judge Nigel Rodley concurred that “the refusal of the State party to allow for terminations even in the case of fatal foetal abnormality cannot even be justified as being for the protection of the (potential) life of the foetus. In addition, not only has article 7 [prohibition of inhuman and degrading treatment under ICCPR] been violated cumulatively … but by the very requirement that a pregnant woman carrying a doomed foetus is subjected to the anguish of having to carry the pregnancy to term.”(Mellet p.25).

As human rights expert Christina Zampas testified (2:27-2:45) before an Irish  parliamentary committee, Ireland is obligated to comply with international human rights law, including these two decisions: “The urgency of the human rights concerns in Ireland is reflected in serious human rights violations amounting to cruel, inhuman and degrading treatment, as found in the Mellet and Whelan cases. The UN Human Rights Committee held in these two cases that prohibiting and criminalising abortion in situations of fatal foetal impairment subjected these women to conditions of intense physical and mental suffering, and that no justification could be invoked, nor were there extenuating circumstances to excuse such harm.”

 So far, these decisions only represent a victory for the two victims.  The Human Rights Committee ignored that the criminalization of abortion in Ireland discriminates against women on grounds of sex and gender. The Committee decided that the women’s right to equality was violated only because other women who had had spontaneous miscarriages in Ireland could access counselling services, but they could not.

Equal treatment on grounds of sex and gender demands accommodation of the biological differences between men and women in reproduction,² not endorsement of a false legal equality created by men for men.  Both decisions overlooked that the criminalization of abortion discriminates against women because it is a medical procedure that only women need, whereas the Irish legal system does not criminalize any medical procedure that only men need. Fortunately, concurring opinions by Committee members Yadh Ben Achour and Sarah Cleveland exemplify jurisprudence that strives to understand the perspectives of women in difficult situations.

It remains to be seen whether Irish government initiatives and a referendum later this year, will bring Irish law into compliance with international human rights law.