Ireland’s repressive abortion laws violate international law, the U. N. Human Rights Committee concluded on Thursday, by subjecting women to “discriminatory,” “cruel, inhuman and degrading treatment” that “encroach[es] on [their] dignity and physical and mental integrity.” The panel ordered Ireland to “amend its law on voluntary termination of pregnancy, including if necessary its Constitution, to ensure compliance” with the decision and the law.
Although Ireland is socially progressive in many ways, the country still has some of the most restrictive abortion laws in the world. Women are forbidden from terminating their pregnancies in cases of rape, incest, and fetal abnormalities, or when the fetus cannot survive outside the womb. Until 2013, Irish law also barred women from receiving abortions even when a pregnancy posed a grave health risk to the mother. The legislature lifted that restriction following the high-profile death of a woman who died because doctors would not abort her miscarried fetus. But the rest of Ireland’s repressive abortion laws remain in force.
These laws, the U.N. panel found, violate several provisions of the International Covenant on Civil and Political Rights, to which Ireland is a party. Its decision was spurred by a complaint filed by Amanda Mellet, an Irish woman who learned in her 21st week of pregnancy that her fetus had a fatal congenital heart defect. The doctor, subject to an abortion gag law, told her: “Terminations are not available in this jurisdiction. Some people in your situation may choose to travel.” Another doctor tried to talk her out of terminating her pregnancy. Shortly thereafter, Mellet flew with her husband to Liverpool, England, to terminate her pregnancy. Still weak and bleeding, she returned to Dublin just 12 hours after the procedure because she could not afford to remain in the U.K. Back in Ireland, “she was denied bereavement counselling and medical care available to women who miscarry.”
This legally compelled mistreatment, the U.N. panel held, violated the covenant’s ban on “cruel, inhuman, and degrading treatment” by denying Mellet the appropriate health care and counseling, “forcing her to continue carrying a dying foetus,” “compelling her to terminate her pregnancy abroad,” and “subjecting her to intense stigma.” The panel also found that Irish law violated Mellet’s right against “arbitrary or unlawful interference with her privacy.”
The author had to choose between, on one hand, letting the state make the deeply intimate reproductive decision for her to continue with a non-viable pregnancy under conditions of unimaginable suffering and, on the other hand, having to travel abroad for a termination. Neither of these options had the potential to preserve her reproductive autonomy and mental well-being. By denying the author the only option that would have respected her physical and psychological integrity (allowing her to terminate her pregnancy in Ireland), the State interfered arbitrarily in her decision-making.
Further, the panel found that Ireland’s abortion gag law, which restricts doctors’ ability to counsel patients about abortion options, violates “the right to freedom of information” under the covenant. This right, the panel explained, “encompasses information concerning health issues, including critical information for making informed choices about one’s sexual and reproductive health. In this respect, the author’s right to access information was violated.”
Finally, the panel held that Ireland’s abortion laws constitute illegal sex discrimination. “Laws criminalizing abortion,” the panel wrote, “violate the rights to non-discrimination and equal enjoyment of other rights on the grounds of sex and gender.”
The rights to equality and non-discrimination compel states to ensure that health services accommodate the fundamental biological differences between men and women in reproduction. Such laws are discriminatory also because they deny women moral agency that is closely related to their reproductive autonomy. There are no similar restrictions on health services that only men need.
The panel also explained why Irish abortion laws constitute invidious and illegal sex stereotyping:
Ireland’s criminalization of abortion reduced the author to her reproductive capacity by prioritizing the protection of the “unborn” over her health needs and decision to terminate her pregnancy. She was subjected to a gender-based stereotype that women should continue their pregnancies regardless of the circumstances, their needs and wishes, because their primary role is to be mothers and self-sacrificing caregivers. Stereotyping her as a reproductive instrument subjected her to discrimination, infringing her right to gender equality. Under the Irish health care system, women who terminate non-viable pregnancies are considered to not deserve or need counselling, whereas women whose foetuses die naturally do. This treatment illustrates that there is a stereotypical idea of what a woman should do when her pregnancy is non-viable, i.e. let nature run its course regardless of the suffering involved for her.
A flurry of concurring opinions bolstered the finding of sex discrimination and argued that Ireland’s abortion laws “discriminate on grounds of socio-economic status,” which is also illegal under the covenant. Ireland’s laws, one concurrence argued, force women to travel abroad in order to terminate their pregnancies—a disproportionately burdensome requirement for “low-income and vulnerable populations.”
Although the Mellet case dealt specifically with fetal abnormalities, the panel’s decision is expansive enough to call into question the legality of Ireland’s broader abortion regime. The country must now “ensur[e] effective, timely and accessible procedures for pregnancy termination in Ireland, and take measures to ensure that health-care providers are in a position to supply full information on safe abortion services without fearing being subjected to criminal sanctions”
“The Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views,” the panel wrote. The clock is already ticking.