In January 2010, Ms. Whelan was informed by her doctors in Ireland that her pregnancy involved a fatal fetal anomaly and that the fetus would die in utero or soon after birth. Upon hearing this news, Ms. Whelan was grief-stricken and decided that she could not continue with the pregnancy. However, as a result of Irish law, which prohibits abortion in all situations except where a woman’s life is at risk, she was informed that her only option in Ireland was to continue her pregnancy to term. As a result, Ms. Whelan made arrangements and travelled out of Ireland at her own expense to a hospital in the United Kingdom where she obtained an abortion. In April 2014, Ms. Whelan filed an individual complaint to the Human Rights Committee, under the Optional Protocol to the International Covenant on Civil and Political Rights, claiming Ireland’s prohibition and criminalization of abortion had violated her rights under Articles 7 (right to freedom from cruel, inhuman or degrading treatment), 17 (right to privacy) and 26 (right to equality before the law) of the Covenant.
The Human Rights Committee found that Ireland had violated Article 7 (right to freedom from cruel, inhuman or degrading treatment), Article 17 (right to privacy), and Article 26 (right to equality before the law) of the International Covenant on Civil and Political Rights. The Committee’s decision in this case was the second of its kind and closely resembled its previous decision in the case of Mellet v. Ireland.
The Committee held that by prohibiting and criminalizing abortion, and thereby preventing Ms. Whelan from accessing abortion services in Ireland but instead forcing her to choose between continuing her pregnancy to term or traveling to another country to access abortion care, the state subjected her to conditions of severe emotional and mental pain and suffering. The degree of pain and suffering was sufficiently severe to amount to cruel, inhuman or degrading treatment, in violation of Article 7. In this regard, the Committee noted that “much of the suffering [Ms. Whelan] endured could have been mitigated if she had been allowed to terminate her pregnancy in the familiar environment of her own country and under the care of health professionals whom she knew and trusted.” Thus, the Committee found that Ireland had violated her right to freedom from ill-treatment.
The Committee also held that Ireland’s prohibition and criminalization of abortion violated Article 17 by interfering with Ms. Whelan’s private decision not to continue her pregnancy. The Committee recognized that women in Ireland in Ms. Whelan’s situation who decide to carry a pregnancy to term continue to receive the full protection of the Irish public health care system, such as health insurance coverage and access to care from known medical professionals. In contrast, because of Ireland’s prohibition on abortion, the Committee found that Ms. Whelan was placed entirely outside of the Irish public health system and had to rely on her own resources to obtain the care she needed in another country. As a result, the Committee held that Irish law “failed to adequately take into account her medical needs and socio-economic circumstances,” and thus discriminated against Ms. Whelan and denied her equal protection of the law in violation of Article 26.
The Committee specified that under Article 2 of the Covenant the state is obliged to make full reparation to Ms. Whelan for the harms she suffered. To that end it instructed Ireland to provide Ms. Whelan with adequate compensation and psychological counseling, and to reform its laws to ensure that no similar violations occur in the future. In that regard the Committee outlined that Ireland is obliged to, “amend its law on voluntary termination of pregnancy, including if necessary its Constitution, to ensure compliance with the Covenant,” and ensure, “effective, timely and accessible procedures for pregnancy termination in Ireland.”