News & views as easy as A, B and C: Will A, B and C v. Ireland be Ireland's wake-up call for abortion rights?

European Journal of Health Law

Volumn 18, Issue 2, 2011, Pages 205-219

  Staunton, Ciara ^a  

^a NATIONAL UNIVERSITY OF IRELAND   (Ireland)

Author keywords

A, B and C v. Ireland; abortion rights; Ireland; margin of appreciation

Indexed keywords

ARTICLE; FEMALE; HEALTH CARE POLICY; HUMAN; IRELAND; LEGAL ABORTION; LEGAL ASPECT; PREGNANCY;

ABORTION, LEGAL; FEMALE; HEALTH POLICY; HUMANS; IRELAND; PREGNANCY;

EID: 79953807661     PISSN: 09290273     EISSN: 15718093     Source Type: Journal    
DOI: 10.1163/157180911X564589     Document Type: Article

References (66)

1. The author wishes to acknowledge the funding from the Irish Research Council for Humanities and Social Sciences.
2. C. OBrien, "Woman with Cancer Tells of her Abortion Ordeal", Irish Times, Tuesday, 21 December 2010.
3. Application no. 25579/05, 16 December 2010.
4. The 1861 Act applied to Ireland as at this time Ireland was under English rule. While Ireland gained independence from England and enacted its own Constitution in 1937, by virtue of Article 50.1 of the Irish Constitution, all laws in force in Ireland prior to the Constitution shall remain in force provided that they are not contrary to the Constitution. As the 1861 Act was never held to be contrary to the Constitution, it is the law governing abortion in Ireland both before and after the enactment of the Constitution.
5. [1938] 1 KB 687.
6. Ibid., at 691.
7. Ibid., at 694.
8. [1974] IR 284.
9. 410 U.S. 113 (1973). However the Court did state that this was not an absolute right. It was noted that once the foetus becomes viable, the State had a legitimate interest in protecting the life of the foetus. For criticisms of the Roe decision see Webster v. Reproductive Health Services (1983) 462 US 416 and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) 505 US 833.
10. [1974] IR 284 at 312.
11. [1980] IR 32.
12. This is not a constitutional right as, at present, a child does not have rights distinct from its parents under the Irish Constitution.
13. See A. Sherlock "The Right to Life of the Unborn in the Irish Constitution" (1989) 24 Irish Jurist 13.
14. See J. Spreng, Abortion and Divorce in Ireland (Jefferson, NC McFarland Company and Inc., 2004) at 87.
15. Barry Desmond TD, 17 February 1983, Dáil Debates, vol. 340, col. 473-474, quoting the Attorney General.
16. Senator Catherine McGuinness, 25 May 1983, Seanad Debates, vol. 100, col. 1092.
17. [1991] 3 CMLR 849, [1992] ILRM 461.
18. However the Protocol is of questionable legal status. It is argued that the reference to Article 40.3.3 is in reference to the article as stated on 7 September 1992. Thus subsequent amendments do not come under the protection of the Protocol. G. Hogan and G. Whyte, JM Kelly: The Irish Constitution 4th ed, (Dublin: Lexis Nexis, 2003) at para. 7.3.259.
19. [1992] 1 IR 1.
20. Ibid., at 82.
21. (1993) 15 EHRR 244.
22. Ibid., at para. 68.
23. Ibid., at para. 78.
24. Constitutional Review Group Report of the Constitutional Review Group (1996).
25. Ibid., at 275.
26. Ibid., at 279.
27. All Party Oireachtas Committee on the Constitution Fifth Progress Report: Abortion (2000) at 115.
28. A and B v. Eastern Health Board, Judge Mary Fahy and C, and the Attorney General (Notice Party) [1998] 1 IR 464.
29. [1998] 1 IR 464 at 477.
30. Ibid..
31. It should be noted that in the X case the Supreme Court held that suicide is grounds for an abortion. Thus should the government have opted to enact this article, "other than by self-destruction" would have had to be removed.
32. It is likely that should the government have enacted sections of the Bill, there would have been public anger that sections of a Bill, the entirety of which could not be enacted due to a rejected referendum, had become law.
33. [2010] EHRR 2032 at para. 168.
34. Ibid., at para. 172.
35. Ibid., at para. 174.
36. Ibid., at para. 178.
37. Ibid., at para. 179.
38. Application no. 5410/03 20 March 2007.
39. Supra note 33, at para. 180.
40. Ibid., at para. 186.
41. Supra note 33, at para. 189.
42. Ibid., at para. 189.
43. Ibid., at para. 216.
44. Ibid., at para. 226.
45. Ibid., at para. 233.
46. Ibid., at para. 235-236.
47. Ibid., at para. 237.
48. Ibid., at para. 247.
49. Ibid., at para. 253.
50. Ibid., at para. 254.
51. Ibid., at para. 257.
52. Ibid., at para. 258.
53. [2010] EHRR 2032 at para. 259.
54. Ibid., at para. 267.
55. See F. deLondras "Ireland is still in denial over abortion", The Guardian, Thursday, 16 December 2010, online at: http://www.guardian.co.uk/ commentisfree/2010/dec/16/ireland-abortion-legislation, retrieved 4 January 2011. DeLondras also states that "it is unconscionable for a government to have spent the past 18 years, since the Supreme Court urged it to legislate, in a state of avoidance."
56. http://www.dohc.ie/press/releases/2010/20101216b.html, 16 December 2010, retrieved 4 January 2011.
57. P. Cullen and H. McGee "Proposing Legal Changes Will Take Time, says Harney", Irish Times, Friday, 17 December 2010, online at: http://www.irishtimes.com/newspaper/ireland/2010/1217/1224285736670.html, retrieved 4 January 2011.
58. Ibid..
59. A. Wagner, Ireland must make access to abortion easier in life threatening situations, UK Human Rights Blog 16 December 2010, online at: http://ukhumanrightsblog.com/2010/12/16/ireland-mustchange-law-to-make-abortion- easier-in-life-threatening-situations/, retrieved 4 January 2011.
60. Dissenting opinion of Rozakis, Tulkens, Fure, Hirvela, Malinverni and Poalelungi JJ, [2010] EHRR 2032 at para. 2.
61. [2010] EHRR 2032 at para. 237.
62. The Irish Supreme Court has held that an embryo in vitro does not come under the definition of the "unborn" and thus is not constitutionally protected. See Roche v. Roche [2010] 2 ILRM 1.
63. For criticism of the majoritys application of the margin of appreciation doctrine see S. Smet "A., B. and C. v. Ireland: Abortion and the Margin of Appreciation", Strasbourg Observers, 16 December 2010, online at: http://strasbourgobservers.com/2010/12/17/a-b-and-c-v-ireland-abortion-and-the- margin-ofappreciation/,retrieved 4 January 2011.
64. See Norris v. Ireland.
65. Dissenting opinion of Rozakis, Tulkens, Fure, Hirvela, Malinverni and Poalelungi JJ [2010] EHRR 2032 at para. 8.
66. See M. Gilmartin,"Abortion and the Politics of Mobility: Gilmartin on A, B and C", Human Rights in Ireland, 23 December 2010, online at: the-politics-of-mobility-gilmartin-on-a-b-and-c, retrieved 4 January 2011.