Friday, 30 November 2012

The medicalisation of abortion in Ireland

Pro-lifers outside the ECtHR, 9 Dec 2009
I will try to sum-up the situation briefly. 

Contrary to what the expert group appears to claim, the ruling of ECtHR in A, B & C v Ireland (2010) only requires the Republic to provide legal clarity not the legalisation of abortion. There is no right to abortion in the European Convention of Human Rights and the Court recognised Ireland sovereignty over its own abortion laws. 

Fundamentally the problem is that while the law in Ireland still recognises abortion as a criminal offence, discussion of the issue has become 'medicalised.' The guidance of the Irish Medical Counsel still reflects the Offences Against the Person Act (1861) which prohibits abortion. However, it understands that a doctor may have a defence against a charge of procuring a miscarriage if he or she can show there were grounds for the reasonable belief that such an intervention was the only way in which the life of a pregnant woman could be saved.

The common perception among politicians, the media and the general public (including sections of the pro-life movement) is, however, that the Irish Constitution confers a right to abortion. It doesn't because abortion remains presumptively illegal and the Constitution can't recognise a right to commit a criminal offence. In spite of this fact the result of the deeply flawed and highly political judgement of the Irish Supreme Court in the X-case, as been that abortion is only ever discussed in terms of healthcare. 

To be fair to the European Court of Human Rights (ECtHR) this current situation is the fault of the Supreme Court and successive Irish governments which pretended to oppose abortion while refusing to defend the right to life of the unborn. The ECtHR therefore only had to accept the judgement in the X-case because the problems it created were never addressed by the Irish Government in its submissions. The Court had already ruled in Tysiac v Poland (2007) that if a right to abortion exists in a State, then there is a duty on the government to ensure that that right can be exercised. From this point of view the procedures for clinical assessment carried out by Irish doctors on a case by case basis, does not provide the predictability which the ECtHR expects members of the public to have in weighing decisions effecting their private lives. Quite naturally, because abortion was presumptively illegal, there was no statutory framework setting out when abortion was lawful and no mechanism for resolving disputes. But the Court was able to cite the Irish Government’s 1996 Review Group Report which “recommended the adoption of legislation regulating the application of Article 40.3.3 (the article recognising the right to life of the unborn), by including a certification process by medical specialists and a time-limit for any certified termination in the case of an abortion considered lawful under Article 40.3.3.” As well as a Government Green Paper from 1999 which advocated much the same thing.

Finally, turning reality on its head, the Grand Chamber declared the Offences Against the Person Act, the primary legislation prohibiting abortion, an obstacle to the provision of 'lawful' abortion and called for its repeal. 

The media firestorm surrounding the death of Mrs Halapannavar has confirmed the widespread misperception of abortion as legitimate healthcare and the abortion advocates in the Government can now set about its legalisation with minimal opposition. 

Every pro-life person in the Republic needs to contact his or her elected representatives and let them know that if they as politicians support the legalised killing of unborn children then they cannot expect to receive the votes of pro-life people at the next election.

No comments:

Post a Comment