I thank members and offer my congratulations on the important work they are embarking upon and the transparent and open process through which they are deliberating on the challenging and important issue of abortion law reform. I am an international human rights lawyer with almost 20 years’ experience of working on sexual and reproductive rights issues. I have done consultancy work for UN agencies such as the World Health Organization and the Office of the High Commissioner for Human Rights and have worked for international NGOs. I am here in my capacity as legal fellow in the faculty of law at the University of Toronto. My first job involved working for a Senator from New Jersey in the US Senate and I have also worked with parliamentary organisations since then and, therefore, have first-hand experience of the work of parliamentarians and its challenges and the very important contribution they make to the realisation of human rights in their countries. My presentation will primarily focus on human rights standards in relation to abortion and state obligations in that regard, which is what the committee has asked me to present upon. I hope it can be helpful to members as they address the recommendations of the Citizens' Assembly.
States create international human rights law and it is based on humankind’s common understanding of the inherent dignity and rights of every human being, which is a notion shared across religious and non-religious ethical frameworks. Ireland has been an important player in the development of the human rights system through helping to create binding treaties and voluntarily ratifying them and by nominating and electing members to UN treaty bodies, which are comprised of independent experts that monitor state compliance with such treaties. Ireland has also sat on the Human Rights Council, which is the UN’s most important inter-governmental body on human rights. Ireland has time and again respected its human rights obligations in many ways. It has done so not just because those treaties are legally binding under international law but because they provide guidance on how to address complex and sometimes competing interests in light of what people are experiencing.
Reproductive rights have long been recognised as human rights and are enshrined in international treaty provisions. International human rights bodies have long recognised that a wide range of human rights guarantees are undermined when women and girls do not have access to safe abortion services, particularly if abortion is restricted and-or criminalised. Those rights include the rights to life, health, privacy and the right to be free from discrimination, torture and other ill-treatment and gender-based violence. The right to health requires states to take legal and policy measures to prevent unintended pregnancies and unsafe abortions. Such measures include respecting the right of women to make autonomous decisions about their sexual and reproductive health and also the liberalisation of restrictive abortion laws to guarantee women and girls access to safe abortion services and quality post-abortion care.
Human rights bodies have considered such failures to ensure women's and girls' access to abortion to be forms of discrimination and inequality in the enjoyment of rights. The UN Committee on the Elimination of Discrimination against Women, CEDAW, has confirmed that measures to eliminate discrimination against women and girls are inappropriate if a health care system lacks services to prevent, detect and treat health concerns specific to women and girls, noting that it is "discriminatory for a State party to refuse to provide legally for the performance of certain reproductive health services for women".
The urgency of the human rights concerns in Ireland is reflected in serious human rights violations amounting to cruel, inhuman and degrading treatment, as found in the Mellet and Whelan cases. The UN Human Rights Committee held in these two cases that prohibiting and criminalising abortion in situations of fatal foetal impairment subjected these women to conditions of intense physical and mental suffering, and that no justification could be invoked nor were there extenuating circumstances to excuse such harm.
Human rights bodies have also held that a woman's decision to continue or terminate a pregnancy falls within the sphere of private life, which includes bodily integrity, holding that restrictive laws and practices interfere with a woman's decision, violating this right. Human rights bodies have long stated that to comply with human rights obligations, states should decriminalise abortion, liberalise restrictive laws and remove barriers that hinder access to legal abortion. While they have noted that states must ensure access at a minimum in cases of threat to the woman's life or health, in cases of rape or incest and in cases of severe or fatal foetal impairment, they have also called on states which allow abortion only on such minimum grounds to liberalise their laws. This is because human rights bodies are recognising the problem of narrow laws framed around minimum grounds in that, first, they do not guarantee effective access to lawful abortion and, second, women and adolescent girls seek abortions for various reasons, many of which do not fall under these grounds, and that there are harms and human rights implications in these cases as well, especially for marginalised women. Last year four UN experts issued a joint global statement recommending the good practice found in many countries that provide women access to safe abortion services on request during the first trimester.
UN human rights treaty bodies have also recognised this reality by directing states to address abortion in a more general manner without delineating grounds. For example, the UN Committee on the Rights of the Child recommends that states should ensure access to safe abortion and post-abortion care. It also recently made this recommendation to Ireland. Another expert body, the UN Working Group on Discrimination against Women recommends that states should recognise women's right to be free from unwanted pregnancies, noting that many countries where women have the right to abortion on request supported by affordable and effective family planning measures have the lowest abortion rates in the world, and that states should allow women to terminate a pregnancy on request during the first trimester or later, on minimum grounds.
The World Health Organization also recognises that restrictive legal grounds for abortion and other legal, regulatory and administrative barriers contribute to unsafe abortion because they deter women from seeking care, cause delay in access to services which may result in denial of services due to gestational limits on the legal grounds, and create complex and burdensome administrative procedures. The Citizens' Assembly recommendation on access to abortion without restriction as to reason is in line with these human rights and health standards.
Although a wide range of laws and policies ultimately determine whether women's and girls' equality and right to be free from discrimination are a priority for states, trusting women and adolescents to make autonomous decisions about their sexuality and reproduction is central, including deciding whether to carry a pregnancy to term. The UN Committee on Economic, Social and Cultural Rights has explicitly articulated increased access to abortion, as well as other sexual and reproductive health services, within states' obligation to respect the right of women to make autonomous decisions about their health.
The UN Committee on the Rights of the Child has called on countries, including Ireland, to ensure that the views of the pregnant girl are always heard and respected in abortion decisions. The Committee on the Elimination of Discrimination against Women has expressed concerns about one country's convoluted abortion law, which makes women dependent on the benevolent interpretation of a rule which nullifies their autonomy, and noted that the state party should review the abortion law and practice with a view to simplifying it and to ensuring women's autonomy to choose.
Having respect for women's and girl's decision-making agency reflected in the law is a key indicator of the degree to which women's equality is respected. The achievement of substantive equality requires states to understand how women, and subgroups of women, are disadvantaged in practice by laws, policies and institutions. Laws which do not place women at the centre of care and do not respect their decision-making, wherever those laws are, undoubtedly cause harm to all women, but particularly to marginalised women.
I have observed in my almost two decades of work on this issue that undoubtedly in every country with a restrictive law, the most impacted are vulnerable populations, such as women migrants, women with low economic status, women with disabilities, and adolescents. Ireland is no exception. The United Nations human rights bodies have time and again, including in findings against Ireland, recognised the discriminatory effects of restrictive and criminal regulation on women's access to lawful abortion on the basis of sex, age, geographical location and income. The World Health Organization has underlined that restricting legal access to abortion leads to illegal and often unsafe abortions, and to social inequities, including because of the burden of travel. It does not result in fewer abortions or in significant increases in birth rates.
Women and girls encounter many barriers to abortion, one of which is its criminalisation. Human rights bodies have called on states to decriminalise abortion, which means that abortion is no longer regulated by criminal legislation and is not a criminal offence. The Children's Rights Committee has urged states, including Ireland, to decriminalise abortion in all circumstances. The UN Committee on the Elimination of Discrimination against Women, CEDAW, has also stated that criminalisation, as well as denial or the delay of safe abortion and post-abortion care, are forms of gender-based violence that may amount to torture or cruel, inhuman or degrading treatment and that countries should repeal criminal legislation.
Human rights bodies recognise that criminalisation of abortion contributes to stigmatisation and creates a chilling effect on access to lawful services. In the Mellet case, the UN Human Rights Committee recognised how the criminalisation of abortion degraded and stigmatised Ms Mellet through separating her from the standard way of treating patients and forcing her to travel, and that the shame and stigma associated with the criminalisation of abortion had exacerbated her suffering.
Human rights bodies have also recognised the chilling effect of criminal law on the exercise of professional judgment in providing women and girls with care and have called on states to alleviate its effects. In ABC v Ireland, the European Court of Human Rights noted that it "considered it evident that the criminal provisions of the 1861 Act would constitute a significant chilling factor for both women and doctors in the medical consultation process, regardless of whether or not prosecutions have in fact been pursued under that Act".
Criminal provisions present barriers not only in the context of abortion, but also to other reproductive health services, impacting the quality of care that women receive in pregnancy and childbirth, including in the context of miscarriage. Some national courts understand that the criminal law, as well as other ways of restricting abortion, cause harm and are not a proportionate means to achieve a state's objective to protect prenatal life. For example, European Constitutional Court decisions across Europe have upheld abortion on request laws when faced with challenges due to claims of constitutional protection for prenatal life. While these courts acknowledge that the state has a legitimate interest in protecting prenatal life, the select means of protecting it must be consistent with women's rights. In doing so, these courts have referenced their countries' respective obligations under international human rights treaties.
Placing women at the centre of care does not mean that states should ignore foetal interests. The objective of protecting prenatal life is legitimate but this can be achieved in ways that are consistent with women's rights and which support women. In addition, the evidence is clear that criminal abortion laws are not effective in meeting the state's objective of protecting prenatal life. They do not affect the overall incidence of abortion; they just make it unsafe and burdensome.
This approach is in line with international and European regional human rights norms. No international or European human rights treaty or treaty monitoring body or court has provided that right-to-life treaty provisions apply before birth. This was confirmed by the Council of Europe Commissioner for Human Rights in his report on his visit to Ireland last year. That report states, "The Commissioner stresses that the Eighth Amendment of the Irish Constitution [...] departs from the position consistently held by human rights bodies that the right to life, as enshrined in relevant international treaties, does not apply to prenatal life." In addition, in a landmark case against Peru in which a sexually assaulted child was not provided with an abortion, in part because of state measures to protect prenatal life, the UN Committee on the Elimination of Discrimination against Women found violations of the convention, confirming that foetal interests cannot trump the human rights of women and girls.
Human rights bodies have long referenced achieving reductions in the rate of abortion, not through restrictive abortion laws or mandating recognition of "the right to life of the unborn" but by means of increased access to family planning services and comprehensive sexuality education, to safe motherhood services and prenatal assistance, including to reduce spontaneous miscarriage, and to social and economic protection to ease the burdens of having children. Human rights bodies have also recognised that any procedural or other barriers to abortion can impact the ability to access legal services in practice. Human rights require that "in cases where abortion procedures may lawfully be performed, all obstacles to obtaining them should be removed".
Human rights bodies have recommended that states remove barriers such as mandatory parental consent requirements and financial barriers to abortion services. They have also specified that where, under domestic law, health practitioners are allowed to refuse to provide abortion services on grounds of conscience, states must adopt regulatory frameworks that guarantee access to abortion is not hindered by such practices. They have never mandated a state to recognise conscientious objection in the context of provision of abortion services. They have also raised concerns over judicial or prosecutorial authorisation prior to obtaining an abortion on grounds of rape, and multiple provider authorisation requirements, including in recommendations to Ireland regarding the Protection of Life During Pregnancy Act. They have also urged states to eliminate and refrain from adopting mandatory counselling and medically unnecessary waiting periods prior to abortion and to "[e]nsure that health care professionals provide medically accurate and non-stigmatizing information on abortion". The World Health Organization has also confirmed these as "barriers [to] abortion [that] should be removed".
Access to information is critical to the realisation of all human rights. In the context of health care, including sexual and reproductive health care, states have an obligation not to censor, withhold, misrepresent or criminalise information to the public in general or to individuals. The European Court of Human Rights, in two cases concerning lack of access to lawful abortion, found Poland in violation of the European Convention on Human Rights for lack of proper counselling and information on abortion. Human rights bodies have criticised Ireland's Regulation of Information (Services Outside the State For Termination of Pregnancies) Act 1995 as not being compliant with human rights. The World Health Organization also emphasises that the information given to women seeking abortion services must be unbiased, non-directive and provided only on the basis of informed consent.
These human rights standards show that narrow exceptions to abortion bans are inadequate to eliminate the harms that such laws impose on women and girls. The Protection of Life During Pregnancy Act is an unfortunate testament to how grounds-based laws can hinder women's and girls' rights and harm their health. The urgency of the problem is reflected in the recent decisions of the UN Human Rights Committee against Ireland. Well-functioning abortion laws are guided by and directed at protecting women's and girls' health and human rights. The human rights framework and its obligations provide a common-sense, evidence-based, practical approach, not only to permit expanded access to abortion but also to ensure the delivery and availability of quality abortion services. Combined with guidance from the public health field, including the World Health Organization, human rights enable states to help realise women's equality, regardless of their age, income or background.