This case was brought by three women living in Ireland who became pregnant unintentionally and travelled to the United Kingdom in order to obtain abortion services due to the impossibility of obtaining a legal abortion in Ireland. Irish law permits abortion only where there is a real and substantial risk to the life of the woman, and criminalizes providing or receiving an abortion under all other circumstances.
The first two applicants, A and B, had travelled to the UK for abortion services that they needed to preserve their health and well-being. They complained of the fact that the narrow exception to the abortion ban did not include abortion on health and well-being grounds. Applicant C. unintentionally became pregnant while in remission from cancer. Unaware that she was pregnant, she underwent tests for cancer that were contraindicated during pregnancy. Upon discovering that she was pregnant, she was unable to find a doctor willing to provide sufficient information about the pregnancy’s impact on her life and health or the impact of the tests on the fetus, so she was forced to seek an abortion in the UK.
The applicants argued that the law, which forced them to travel abroad for abortion services, caused them to suffer physical and psychological anxiety and distress, amounting to a violation of their right to be free from inhuman and degrading treatment (Article 3) and freedom from discrimination on the basis of sex (Article 14) of the European Convention on Human Rights. In addition, individual applicants alleged that they were denied the rights to an effective domestic remedy to challenge the law (Article 13), freedom from discrimination as a low-income woman (Articles 14 and 8), and right to respect for private life (Article 8). Applicant C also claimed a violation of her right to life (Article 2).
The European Court of Human Rights found that the criminalization of abortion on the grounds of health and well-being interfered with women’s right to respect for private life. However, it found that this interference could be justified in the circumstances of applicants A and B. Although the Court recognized that Ireland’s abortion law interfered with the applicants’ right to respect for their private lives, affirmed the existence of a broad consensus among Council of Europe member states that permit abortion “on broader grounds than accorded under Irish law,” and remarked upon the European trend toward liberalization of abortion laws, it ultimately decided to accord the state a broad margin of appreciation. The Court referred to the “profound moral views of the Irish people as to the nature of life” and the protection “accorded to the right to life of the unborn,” and acknowledged “the right to lawfully travel abroad for an abortion with access to appropriate information and medical care in Ireland.”
In regard to applicant C, the Court found Ireland in violation of its positive obligation under the right to respect for private life (Article 8). By failing to provide any criteria or procedures for determining whether C’s pregnancy posed a “real and substantial” risk to her life, meaning whether she qualified for legal abortion services in Ireland, Ireland had violated her right under Article 8. The Court also criticized the absence of any framework in Ireland through which a woman and her doctor, or different doctors, could resolve differing opinions about whether the risk to life standard applied in a specific case. The Court explained that this “background of substantial uncertainty . . . and the criminal provisions of the 1861 Act . . . constitute a significant chilling factor for . . . doctors in the medical consultation process, regardless of whether or not prosecutions have in fact been pursued under that Act.” The Court found that judicial proceedings are an inaccessible and ineffective means of determining whether an abortion can be lawfully performed. Specifically, it stated that constitutional courts are an inappropriate forum for determining this issue, which is of a medical nature. The Court noted that the “lack of legislative implementation of Article 40.3.3, and more particularly … the lack of effective and accessible procedures to establish a right to an abortion under that provision, … has resulted in a striking discordance between the theoretical right to a lawful abortion in Ireland on grounds of a relevant risk to a woman’s life and the reality of its practical implementation.”
The Court awarded 15,000 euros to Applicant C for pain and suffering. No rights’ violations were found concerning the other two applicants.