State defends ban on abortion as women take case to Europe

Klingon Hamlet

THE Government is to defend Ireland's controversial abortion ban in a landmark case this week in the European Court of Human Rights.


And if Ireland is found to be in violation of the European Convention on Human Rights it may lead to the introduction of abortion here in limited circumstances.


Attorney General Paul Gallagher will lead an eight-strong legal team to Strasbourg to defend the ban.


The European Court of Human Rights (ECHR) will sit on Wednesday to hear the action brought by three Irish women in a ruling that could have European-wide implications.


The case has been taken by three women identified as A, B and C, who claim their health was put at risk by being forced to go abroad for abortions.


In an indication of how robustly the State will defend Ireland's ban, Mr Gallagher has engaged two of the country's leading constitutional lawyers, Donal O'Donnell SC and Brian Murray SC.


If successful, the case could establish the minimum degree of protection to which a woman seeking an abortion to safeguard her health and wellbeing would be entitled under the European Convention on Human Rights.


And it may, if Ireland is found to be in violation of the convention, lead to abortion being available here in certain circumstances.


Abortion is criminalised under the Offences against the Person Act of 1861, which threatens women who 'unlawfully procure a miscarriage' with life imprisonment.


The Supreme Court ruled in the 1992 'X Case', which convulsed the country, that abortion is permitted where there is a real and substantial risk to the life of the mother (including the risk of suicide), as distinct from her health.

Problems
But successive governments have shied away from introducing laws to give effect to the ruling or clarify the legal status of the unborn, leading to problems in other areas such as IVF.


The Irish ban will be interpreted in light of a recent abortion case which found against Poland.


The case, Tysiac vs Poland, imposed an obligation on states to provide effective procedures for women to obtain abortions that are legal under national law, signalling that, at the very least, the Government may be obliged to legislate for the X case.


Mr Gallagher, who may personally appear as an advocate before the court, is expected to argue that Ireland is entitled to rely on the "margin of appreciation doctrine" which is often used in cases involving sensitive domestic legal issues.


This doctrine affords a range of discretion to individual member states in the interpretation of convention law and allows the ECHR to take into effect the fact that the convention will be interpreted differently in different signatory states.


The women, supported by the Irish Family Planning Association (IFPA), will argue that the ban violates a key right under the convention.


The women lodged a complaint to the European Court of Human Rights in August 2005, contending that the Republic of Ireland breached their human rights under Articles 2 (Right to Life), 3 (Prohibition of Torture), 8 (Right to

Respect for Family and Private Life) and 14 (Prohibition of Discrimination) of the European Convention on Human Rights.


Senior counsel Carmel Stewart is representing the women, assisted by the IFPA's legal consultant, Julie Kay.


- Dearbhail McDonald Legal Editor
Irish Independent

When will this country actually join the 21st century? Legalise abortion, but limit it to within 4-6 weeks of conception, that seems fairest. 8 fatcat solicitors are going to try to keep us in the stone age and keep women under the bootheel of the church. Shameful.

http://www.independent.ie/national-news/courts/state-defends-ban-on-abortion--as-women-take-case-to-europe-1966158.html

Morlar

Klingon Hamlet wrote: »

When will this country actually join the 21st century? Legalise abortion, but limit it to within 4-6 weeks of conception, that seems fairest. 8 fatcat solicitors are going to try to keep us in the stone age and keep women under the bootheel of the church. Shameful.

http://www.independent.ie/national-news/courts/state-defends-ban-on-abortion--as-women-take-case-to-europe-1966158.html

There is nothing '21st century' about abortion, nor does it mean we are 'under some churches bootheel' if we don't permit it.

Klingon Hamlet

Look: http://en.wikipedia.org/wiki/File:AbortionLawsMap-NoLegend.png

We're one of the minority who refuse to give a woman the choice

Dades

Klingon Hamlet wrote: »

Legalise abortion, but limit it to within 4-6 weeks of conception, that seems fairest.

Did you just pluck that time-limit out of a hat?

Grand so. Everyone form a queue -or move on.

Klingon Hamlet

Dades wrote: »

Did you just pluck that time-limit out of a hat?

Grand so. Everyone form a queue -or move on.

UK allows upto 26 weeks I believe. I'm stating my opinion that if a foetus is to be terminated, that it should be done well before it evolves beyond a few weeks.

Noffles

Klingon Hamlet wrote: »

When will this country actually join the 21st century? Legalise abortion, but limit it to within 4-6 weeks of conception, that seems fairest. 8 fatcat solicitors are going to try to keep us in the stone age and keep women under the bootheel of the church. Shameful.

http://www.independent.ie/national-news/courts/state-defends-ban-on-abortion--as-women-take-case-to-europe-1966158.html

Women under the bootheel and young lads bent over the pedestal... how anyone follows the catholic cult these days is completely beyond me.

metrovelvet

Klingon Hamlet wrote: »

UK allows upto 26 weeks I believe. I'm stating my opinion that if a foetus is to be terminated, that it should be done well before it evolves beyond a few weeks.

Why?

The whole premise of the case is that Irish women are not put at risk by having to travel? Are they not at more risk at 26 weeks?

Klingon Hamlet

metrovelvet wrote: »

Why?

The whole premise of the case is that Irish women are not put at risk by having to travel? Are they not at more risk at 26 weeks?

Apparently not. Plus I think it's unethical to abort so late into a pregnancy.

jhegarty

Klingon Hamlet wrote: »

Look: http://en.wikipedia.org/wiki/File:AbortionLawsMap-NoLegend.png

We're one of the minority who refuse to give a woman the choice

Not sure what map your looking at , but legal on request seems to be the minority there.

Klingon Hamlet

Klingon Hamlet wrote: »

Legalise abortion, but limit it to within 4-6 weeks of conception, that seems fairest.

4 weeks to next period + realise it's missed, another week to verify, then get on waiting list/make an appointment for abortion. Time limit maxed already.
Nice in theory, but it would need to be around 8 weeks or so to give a realistic chance.

Noffles

Oh ****... here it goes again...

Pro Choice!!!

metrovelvet

Klingon Hamlet wrote: »

Apparently not. Plus I think it's unethical to abort so late into a pregnancy.

The ethics are not around the foetus. I thought you didnt want to take away a woman's choice?

Nevyn

We already have legal abortion in certain cases, like when the 'baby' develops with out a brain but the fact the government refuses to legislate those legal cases women have to travel out of the country for medical proceedures which are not against the law in this country.

Klingon Hamlet

Thaedydal wrote: »

We already have legal abortion in certain cases, like when the 'baby' develops with out a brain but the fact the government refuses to legislate those legal cases women have to travel out of the country for medical proceedures which are not against the law in this country.

Yeah our gov will never fully sort that until they're forced to by Europe

The map shows the majority of places allow abortion with valid reason.

Morlar

Klingon Hamlet wrote: »

Yeah our gov will never fully sort that until they're forced to by Europe

Didn't the govt just spend millions guaranteeing voters that europe would not affect abortion in this country ?

_michelle_

i tink women should have a choice not be pushed one way or the other, it really is a personal issue & i dont think the government can force a woman to another country if thats what she really wants.

amacachi

Morlar wrote: »

Didn't the govt just spend millions guaranteeing voters that europe would not affect abortion in this country ?

Not taxpayers' money, no, and I'm fairly sure they said Lisbon wouldn't have any effect, and they're right so far.

Klingon Hamlet

Morlar wrote: »

Didn't the govt just spend millions guaranteeing voters that europe would not affect abortion in this country ?

They spent €0.00 asking voters what their opinion was on abortion. I'd say the majority of us would be pro-choice. What do you think?

Bigdeadlydave

Everyone keeps going on about how women are "forced" to have these children. If abortion is legalized here in Ireland I have no doubt that many women will be forced TO have abortions. In the same way that women were forced into putting their kids up for adoption.

afatbollix

bollix any one who wants an abortion just goes to the UK anyway... to be honest it just would be alot easier for every one involved if it just involed a trip to a local hospital instead of a 2-3 day trip...

jhegarty

Klingon Hamlet wrote: »

They spent €0.00 asking voters what their opinion was on abortion. I'd say the majority of us would be pro-choice. What do you think?

We have had more referenda on it then any other topic.

Klingon Hamlet

Yes and it almost got voted trough, there was a difference of only 2 or 3 percent in the last one.

A poster made the point that women are going abroad to get this done. Family planning groups help with this, but it's pricey and to have to leave one's own country to do it just maks the ordeal even worse.

I understand the arguments against abortion. I believe that it should be available to women, it's their body, why should a government refuse them that right?

Of course I also believe that if that person knows the father, that there should be an agreement or mediation before a final decision is come to. But that's a different matter.

The fact is that as of now, ladies have to flee to UK or Netherlands (the latter being much more hospitable, less of a conveyor belt of patients) to do what really should be allowed in this country in this day and age.

I guarantee people will look back on these days and wonder at our naivety and out and out cruelty.

These are all my opinions and I do not state them as fact. But I believe them wholeheartedly.

Demonique

Klingon Hamlet wrote: »

Legalise abortion, but limit it to within 4-6 weeks of conception, that seems fairest. [/URL]

What about the women who don't find out until they're 4-6 weeks gone? What then?

nozzferrahhtoo

Klingon Hamlet wrote: »

UK allows upto 26 weeks I believe. I'm stating my opinion that if a foetus is to be terminated, that it should be done well before it evolves beyond a few weeks.

I agree. I argue for a 12-16 week cut off myself for a large variety of reasons. The US allow 24 I think too. Of course since my cut off is smack in the middle between current law in the UK/US and Total Anti abortion people, I take flak from both sides

Still I am comforted by the fact that in the US 61.3% of abortions happen before 9 weeks. Around 88% happen before 12 weeks. And of the 12% who had it later 58% OF them said they wish they had had it sooner***.

So not only do I have arguments for my 12 to 16 week cut off, but it appears to match the reality of both what is happening and what women WANT to do too.

========
source:
***www.guttmacher.org/pubs/fb_induced_abortion.html

drkpower

nozzferrahhtoo wrote: »

I agree. I argue for a 12-16 week cut off myself for a large variety of reasons.

That's funny. I could have sworn that you argued for a 16 week cut-off on the othewr thread on the basis of your assertion (quoting one medical paper) that "it (conciousness/sentience) plain and simply is not there".

Why would you want to bring it back to 12 weeks when a 16 week foetus, by your definition, has absolutely no rights?
Is it because you dont trust the science and want to have an extra large (8 week buffer from 20 weeks) 'just in case'? In which case, how can you trust an area of science that is very much in its infancy, practically a foetus, you might say?

2 stroke

I support the right of life of the unborn, over the womans right to choose.
Abortion is murder. Nobody is forced to the uk, they travel there to circumvent irish law.
The truly suicidal will probably take their own lives at some point, regardless of whether they have an abortion.

RandolphEsq

Bigdeadlydave wrote: »

Everyone keeps going on about how women are "forced" to have these children. If abortion is legalized here in Ireland I have no doubt that many women will be forced TO have abortions. In the same way that women were forced into putting their kids up for adoption.

Ok?

Seems a better alternative

Permabear

This post has been deleted.

conorhal

Uh, wasn't the issue of irelands sovereignty regards it's abortion laws dealt with under those 'written guarantees' we were offered as an incentive to pass Lisbon 2? I guess we're about to find out of a written guarantee from the EU is worth the paper it's written on.....

Overheal

Bigdeadlydave wrote: »

Everyone keeps going on about how women are "forced" to have these children. If abortion is legalized here in Ireland I have no doubt that many women will be forced TO have abortions. In the same way that women were forced into putting their kids up for adoption.

You're saying, if we legally offer women Choice, they will have No Choice? I wish to subscribe to your web log.

Max Power1

2 stroke wrote: »

I support the right of life of the unborn, over the womans right to choose.
Abortion is murder. Nobody is forced to the uk, they travel there to circumvent irish law.
The truly suicidal will probably take their own lives at some point, regardless of whether they have an abortion.

WOW.

Just wow.

I thought this sort of religious bigotry was long gone in this country! What gives some one the right to tell someone else what they can and cant do? If you dont agree with abortions fine, but dont tell me i cant have one (if i was female) just because it goes against your views!!!

Boskowski

How can we quib about 4 weeks or 8 weeks or 12 weeks but have absolutely no problem with our best friend country and our best and nicest neighbour country killing hundreds of thousands of people who are actually born in an unjust war?

Ah, it's the children thing is it?

SLUSK

Klingon Hamlet wrote: »

When will this country actually join the 21st century? Legalise abortion, but limit it to within 4-6 weeks of conception, that seems fairest. 8 fatcat solicitors are going to try to keep us in the stone age and keep women under the bootheel of the church. Shameful.

http://www.independent.ie/national-news/courts/state-defends-ban-on-abortion--as-women-take-case-to-europe-1966158.html

What else can you expect from primitive religious savages?

nozzferrahhtoo

drkpower wrote: »

That's funny. I could have sworn that you argued for a 16 week cut-off on the othewr thread on the basis of your assertion (quoting one medical paper) that "it (conciousness/sentience) plain and simply is not there".

Why would you want to bring it back to 12 weeks when a 16 week foetus, by your definition, has absolutely no rights?
Is it because you dont trust the science and want to have an extra large (8 week buffer from 20 weeks) 'just in case'? In which case, how can you trust an area of science that is very much in its infancy, practically a foetus, you might say?

Actually no on the other thread I was not wholly specific about exactly the cut off I would go for. If you read all I wrote you will for example see I linked to an essay from me that suggests 12 weeks.

Actually given the science I use to back me up I would feel comfortable enough with 20 weeks, but I am aware that some fetus' develop slightly faster than others. I would feel wholly safe with 16 weeks based on my position and my arguments on the subject.

My position on 12 weeks however would be entirely subjective. Studies I have read, one of which I even linked to on the other thread, showed that more than half of the people who had it in the 12 to 16 weeks bracket regretted dawdling and wish they had it done sooner.

So no I am afraid your attempt to find an inconsistency in my position has succeeded solely in uncovering an area where I decided not to be wholly specific as it was not relevant to the discussion I was having at the time. If I was to go in to the public arena tomorrow and actively campaign for the right to abortions I would happily settle on any figure in the 12 to 16 range for all the reasons I gave in the other thread. If I was asked to choose myself what cut off to go for I would instantly say 16. However I fight alongside anyone who falls within 12-16, therefore the phrase "I argue for..." is entirely accurate.

SLUSK

I believe you should allow really late abortions, so called partial birth abortions. A fetus has no rights.

bonkey

jhegarty wrote: »

We have had more referenda on it then any other topic.

Obviously, then, the people haven't given the governent the answer they want.

Bigdeadlydave

All I know is now if someone asked me if I wish I was aborted I would say no.

Seth Brundle

Klingon Hamlet wrote: »

Look: http://en.wikipedia.org/wiki/File:AbortionLawsMap-NoLegend.png

We're one of the minority who refuse to give a woman the choice

_michelle_ wrote: »

i tink women should have a choice not be pushed one way or the other, it really is a personal issue & i dont think the government can force a woman to another country if thats what she really wants.

Should men be given a choice also (or at least some input into the decision)?

2 stroke wrote: »

I support the right of life of the unborn, over the womans right to choose.
Abortion is murder. Nobody is forced to the uk, they travel there to circumvent irish law.
The truly suicidal will probably take their own lives at some point, regardless of whether they have an abortion.

OK - but this view is based upon what? Catholic morals?
Should your views be deemed more worthy than other peoples?
I don't want to get drawn into a debate on which side is right and which is wrong but please stop trying to sound like Ann from last night's Frontline!

SLUSK wrote: »

I believe you should allow really late abortions, so called partial birth abortions. A fetus has no rights.

http://en.wikipedia.org/wiki/Cartman%27s_Mom_Is_Still_a_Dirty_Slut

Johnee

conorhal wrote: »

Uh, wasn't the issue of irelands sovereignty regards it's abortion laws dealt with under those 'written guarantees' we were offered as an incentive to pass Lisbon 2? I guess we're about to find out of a written guarantee from the EU is worth the paper it's written on.....

Its a different court, under a different system. The European Court of Human Rights is not part of the EU system. That's the European Court of Justice.

The European Court of Human Rights comes under the Council of Europe which covers a much bigger group of countries and has been around since the late 40's/early 50's.

So, no matter what the Court decides, this has nothing to do with the EU.

2 stroke

Max Power1 wrote: »

WOW.

Just wow.

I thought this sort of religious bigotry was long gone in this country! What gives some one the right to tell someone else what they can and cant do? If you dont agree with abortions fine, but dont tell me i cant have one (if i was female) just because it goes against your views!!!

kbannon wrote: »

OK - but this view is based upon what? Catholic morals?
Should your views be deemed more worthy than other peoples?
I don't want to get drawn into a debate on which side is right and which is wrong but please stop trying to sound like Ann from last night's Frontline!

For me this is not a religous issue. Life can be detected inside the womb. A featus not a piece of jelly or a piece of liveless meat, but a defenseless, living person.

oscarBravo

I'm going to lay down a marker here: this thread is not for discussion of abortion; especially not the rights and wrongs thereof. This thread is only for discussion of the case being taken.

Permabear

This post has been deleted.

2 stroke

Appologies but didnt this thread start in humanities? I returned from work and responded to comments made to my post which was originally posted in humanities.

Permabear

This post has been deleted.

seamus

It's about time someone had grounds to take such a challenge.

A succession of Irish Governments have happily ignored this question and let things rattle on as if nothing was happening. If anything they indicated that they want to be *more* restrictive on abortion, when general public opinion has swung towards at the very least formal legislation to cater for those cases which are already legal here.

But they're scared of having the debate because you can't have a national debate on a topic which is devoid of logic and based entirely on what the individual *feels* is right. They'd be far happier if the supreme court or the ECHR could indicate what laws are required and then claim that their hands are tied, that they didn't choose to legalise anything.

Interesting to see how this all turns out.

jaybird

Thaedydal wrote: »

We already have legal abortion in certain cases, like when the 'baby' develops with out a brain but the fact the government refuses to legislate those legal cases women have to travel out of the country for medical proceedures which are not against the law in this country.

No, the only legal reason for abortion in this country is if the life of the women (not mother, if you haven't given birth you are not a mother) is in imminent risk.

positron

A few questions for those who can help me:

* Does the constitution of this country give the government power to take a side (here the side to keep abortions) in such a case?
* Shouldn't something like this be voted on by the public? A referendum?
* Can any Irish citizen sue Irish Government for not giving him/her a chance in deciding what side the Government should take in this case (pro or against abortion etc).
* and lastly, anyone know what is the stance of various political parties on abortion law?

Thanks a million!

RandolphEsq

positron wrote: »

* Does the constitution of this country give the government power to take a side (here the side to keep abortions) in such a case?

The governments side is irrelevant I think as it is The State arguing that the ECHR is not infringed by the State's law banning abortion

positron wrote: »

* Shouldn't something like this be voted on by the public? A referendum?

Not necessary. Whatever the European Courts say is automatically law here in Ireland regardless if it appears to disagree with our Constitution. And that is not as a result of the Lisbon Treaty!

positron wrote: »

* Can any Irish citizen sue Irish Government for not giving him/her a chance in deciding what side the Government should take in this case (pro or against abortion etc).

I think the first answer deals with that as the government's side is irrelevant.

positron wrote: »

* and lastly, anyone know what is the stance of various political parties on abortion law?

lol they are not too keen on advertising their stance due to abortion being such a hot topic, but it might be easy to find out with a bit of digging

seamus

RandolphEsq wrote: »

The governments side is irrelevant I think as it is The State arguing that the ECHR is not infringed by the State's law banning abortion

Well, the "State" basically holds that whatever the constitution says, is their "side". So if the constitution (or the law) says that abortion is illegal, then the state is of the opinion that abortion is wrong, unless it can be shown that the constitution or the legislation is invalid.

Not necessary. Whatever the European Courts say is automatically law here in Ireland regardless if it appears to disagree with our Constitution. And that is not as a result of the Lisbon Treaty!

Actually, this has very little to do with the EU or Lisbon.

The argument here is that Ireland's constitutional ban contravenes the European Convention on Human Rights. This convention is upheld by the Council of Europe, which is an entirely distinct body from the European Union.

Although Ireland falls under the jurisdiction of the council of Europe, any ruling may by the European Court of Human Rights does not override our constitution, but rather where a conflict occurs we will be required to resolve it. Though the EU is a signatory to the convention, the convention is not law in the EU, rather it's an agreement to how its member states should act.

The Charter of Fundamental Rights of the European Union is a separate, though mostly identical document. This is the document that is now law since the Lisbon Treaty came into force. Thus this document overrides our constitution.

If the European Court of Human Rights rules in favour of the women, it does not mean Ireland is forced to do anything. However, this would give the women good grounds to challenge the constitution on the basis that it conflicts with the above Charter. If the EU then rules that the Charter allows abortion in said circumstances, then Ireland will be forced to allow abortion in these circumstances, in spite of our constitution.

Confused? I am.

Just to be clear - Lisbon didn't open this door, and if the ECtHR rules in favour of the women, it still has nothing to do with Lisbon.

lol they are not too keen on advertising their stance due to abortion being such a hot topic, but it might be easy to find out with a bit of digging

If questioned, I imagine they would all be "pro-life", but I have a feeling that only SF, FF & FG actually are.

positron

Thank you both - I learned something new today!

I wonder what would happen if we had Estonia style e-voting in place, so that we can have a quick poll on anything that is of public interest.

http://en.wikipedia.org/wiki/Electronic_voting_in_Estonia

I think the estonian model is a bit more 'power to people' and 'direct and immediate democracy' which when combined with some investigative journalism could put the country in the right track (depending on the quality of the people and their ethics and priorities, of course..)

cinnamon girl

positron wrote: »

* and lastly, anyone know what is the stance of various political parties on abortion law?

Some of them are posted here. Not surprising how many of the bigger parties refused to answer :rolleyes: