Professor Siobhán Mullally:

It is the view of the Irish Human Rights and Equality Commission that the State should approach reforms on access to abortion in Ireland primarily as a matter of health care policy. To do so would be in keeping with its obligations under international human rights law.

As the committee is aware, the Protection of Life During Pregnancy Act 2013 allows for terminations of pregnancy where there is a real and substantial risk to the life of the mother. This limited access does not meet the requirements of international human rights law. Concerns about the barriers placed by the existing legal framework on women’s right to the highest attainable standard of health, the right to privacy, to equality before the law, to non-discrimination and to freedom from inhuman and degrading treatment, as well as the State’s special obligations towards minors, in particular the girl-child, have been raised by several international human rights bodies.

The position taken by UN human rights treaty bodies differs from the position taken by the European Court of Human Rights. In the case of ABC v. Ireland, the court concluded that abortion law in Ireland struck a fair balance between the competing interests presented. The court relied in particular on the right to travel abroad for abortion, as being significant in applying the fair balance test and in assessing the proportionality of the interference with a woman’s right to private life. A wide margin of appreciation was applied by the court. Ultimately, the court concluded that the constitutional prohibition on abortion in situations where a woman’s health or well-being were at risk pursued the legitimate aim of the protection of morals, and reflected the profound moral values of the Irish people. The court did not accept that sufficient evidence had been presented of a change in those values since the adoption of the eighth amendment. I would be happy to expand on this judgment in our discussion and subsequent case law from the court.

The UN Committee on Economic, Social and Cultural Rights has made clear the “realisation of women’s right to health requires the removal of all barriers interfering with access to health services ... including in the area of sexual and reproductive health”. It has identified the criminalisation of abortion and restrictive abortion laws as among these barriers. The committee has also specifically expressed its concern on the discriminatory impact on women who cannot afford to travel abroad to access abortion services or access the necessary information.

These concerns were reiterated in the views of the UN Human Rights Committee. In her concurring opinion in the Mellet case, Professor Cleveland stated “the committee’s finding of a violation of Article 26 in the author’s case ... is fully justified on grounds of discrimination arising from gender stereotyping”.

The Irish Human Rights and Equality Commission is of the view that the key areas that require attention by this committee include the development of a legislative and regulatory framework that provides for access to abortion for reasons of risk to life and health; socio-economic or family circumstances; pregnancy as a result of rape or incest; and fatal foetal abnormality.

The commission has in the past raised concerns about the number of examinations a girl or woman may be subjected to where she seeks treatment under the current legislation, as well as the effect this may have on a woman’s right to respect for her private and family life. The commission has also raised concerns about the barriers that assessment and certification requirements place before women with restricted access to medical practitioners or health information, such as women from poorer socio-economic backgrounds, from ethnic minority groups, or with intellectual disabilities.

A reformed framework for access to abortion services under a wider set of circumstances should avoid the creation of new processes where vulnerable women and girls may be subject to trauma, re-victimisation, delays in treatment or other harms. The commission is of the view that a new framework for access to abortion should place the decision-making process primarily in the hands of the pregnant woman in consultation with her physician. The commission stresses the importance of ensuring that constitutional reform avoids replicating the barriers to human rights and equality that are in place.

Given these considerations, the commission recommends the referendum announced should allow for the development of a framework governing access to abortion that has a basis in primary legislation and regulation.

As has been highlighted at the Citizens’ Assembly and in other fora, the criminalisation of abortion constitutes a potentially serious chilling factor for women seeking medical care, as well as for health care staff providing such care. The commission, therefore, is of the view that, notwithstanding limitations that may be placed on access to abortion by legislation and regulation, the State should decriminalise abortion in all circumstances, as required by the UN Committee on the Rights of the Child in its concluding observations on Ireland adopted in 2016.

The commission and others have highlighted serious shortcomings in Ireland’s sexual and reproductive health education system. In parallel to a reformed legislative and regulatory framework for access to abortion, it is crucial the State develop a comprehensive, scientifically objective, sexual and reproductive health education policy.

I thank the committee for its attention and we welcome questions and further discussion.