Today, the European Court of Human Rights (ECtHR) Grand Chamber, which consists of 17 judges, will hear a controversial landmark case on abortion, the outcome of which will have significant implications, both for the Irish state and Europe. The case involves a challenge to Ireland's ban on abortion, lodged with the ECtHR in August 2005 by three women resident in Ireland.

The women, known as A, B and C to protect their identity, were forced to travel overseas to obtain abortions, in the process incurring expenses and enduring unnecessary hardship. Each of the women was experiencing difficulties with her pregnancy; collectively they contend that Ireland has breached their human rights under a number of articles of the European Convention on Human Rights (ECHR).

This case is the first direct challenge to Irish abortion law by a group of women. The ECtHR, which is based in Strasbourg and is separate from the European Union, adjudicates on human rights issues among all 47 member states of the Council of Europe. While the European Court of Human Rights does not have the authority to amend Irish law, it can find Ireland to be in violation of the human rights convention. If this were to happen, Ireland would be face significant pressure to comply with its obligations under the convention.

This case is also highly unusual in that it has received such significant attention and input internationally. Although the applicants are supported primarily by the Irish Family Planning Association, the American women’s organisation, ‘Legal Momentum’, is also providing legal counsel to the women. On the Government's side, a number of non-Irish third-party interveners describing themselves as ‘dedicated to the sanctity of human life’ have become involved in the litigation. The interveners include the 'Alliance Defence Fund' on behalf of the US Family Research Council and the London based 'Society for the Protection of Unborn Children'.

Background to the Case

All three women submitting the case to Strasbourg decided to travel to England to have an abortion.

• Applicant A ran the risk of an ectopic pregnancy, where the foetus develops outside the womb. She had taken emergency contraception the day after intercourse, but was advised by two different doctors that it had not only failed, but had given rise to a significant risk of an ectopic pregnancy.
• Applicant B had undergone chemotherapy for cancer treatment. She was unable to find a doctor willing to make a determination about whether her life would be at risk if she continued to term, or to give her clear advice as to how the foetus might have been affected.
• Applicant C is a woman whose four children had been placed in foster care as a result of problems she faced as an alcoholic and because she was unable to cope, was unmarried, unemployed and living in poverty.

The applicants argue that their human rights are being violated under Article 8 of the ECHR which relates to the right of privacy in all family, home and personal interests, and entitlement to no public interference from any public authority in exercising this right. They also allege a breach of:

• Article 2, which protects the life of an individual. They contend that the Irish Government has provided no clear guidance as to when abortion may be legally carried out under the ‘X’ case, where termination of pregnancy is necessary to save a woman’s life.
• Article 3, which protects individuals from inhuman or degrading treatment. The women argue that the criminalisation of abortion harms women by stigmatising them and can result in difficulty in accessing necessary follow up care.
• Article 14, which affords rights and freedoms without discrimination. The women argue that Irish abortion law discriminates on the basis of sex and financial status. Women are treated differently from men in making decisions concerning their private and family life, and the ban imposes particular burdens on economically disadvantaged women and those who have difficulty travelling because of their age or legal status.

The court will also look for information on what exact procedures are in place where a pregnancy poses a risk to the life of the mother, and the course of action a woman must undertake to pursue a lawful abortion in Ireland.

The Irish Times recently reported on the Government’s position in this case. In papers filed with the court and seen by the newspaper, the Government has indicated it will launch a forceful defence of the State’s restrictions on abortion. Government contends that it is "Ireland's sovereign right to determine when life begins" and what rights attach to pre-natal life. However, the central contention of its defence is that domestic legal remedies have not been exhausted by the women.

Likely Outcome

The biggest challenge facing the applicants in this case is indeed the issue of admissibility. In 2006, the ECHR ruled the case of D v. Ireland was inadmissible on the ground that the applicant had failed to exhaust domestic remedies.  Miss ‘D’, a 17 year old woman with an anencephalic pregnancy argued that Ireland's ban on abortion in the case of fatal foetal abnormalities violated Articles 1, 3, 8, 20, 13 and 14 of the European Convention on Human Rights.  In 2007 the Irish High Court ruled that she had the right to travel for an abortion.

While it is entirely possible that ABC v Ireland may suffer the same fate of inadmissibility as D v Ireland, the cases fundamentally differ in that A, B, and C were not facing the unique predicament of Ms. D. The purpose of ABC v Ireland is to directly challenge Ireland's general prohibition of abortion, rather than make an inroad through a particular exception, as in the ‘D’ case. This central difference may persuade the ECtHR that A, B, and C could not have found sufficient recourse in the Irish courts because of the general ban on abortion, whereas in the ‘D’ case, the Irish government recognised the possibility of an exception for very exceptional circumstances.

However A, B and C will argue that the lack of any effectual remedy in Ireland means they have fulfilled the requirement to exhaust domestic legal remedies. They say the "case would have been costly, futile and could have forced them to relinquish their anonymity".

Despite the question over admissibility, based on the merits of the case alone A,B and C will almost definitely win.The court does grant a "wide margin of appreciation" with regards to determining abortion law. This means that the court has reviewed the approaches of all European states and found that states have adopted vastly different approaches which range from conservative to liberal, therefore it is more ‘lenient’ with regards to various state’s abortion legislation. For this reason, it is improbable that the court will rule that Irish law breaches the convention by disallowing abortion on health grounds.

However, the Irish women's application will succeed as it involves a claim that the operation of a state's abortion law in practice is incompatible with the the convention. The precedent for this was set in 2007 when the ECtHR held in Tysiac v. Poland that every state has a positive duty to secure respect for a person's physical and psychological integrity. This ruling was in relation to a case taken by a Polish woman who claimed that Poland had violated her right to physical integrity under the convention by failing to provide her with access to a therapeutic abortion. Under Poland's abortion law, abortion is permitted under certain exceptions, such as a risk to a woman's life or health. The applicant sought an abortion because the birth threatened her limited eyesight. A doctor certified that the pregnancy was a threat to the woman's health. However, another doctor disagreed and no abortion was performed. After the birth of the child, it was discovered that the woman's eyesight had deteriorated and there was a risk of blindness. The court ruled that Poland had breached the woman's right by failing to implement procedural safeguards regarding access to a therapeutic abortion. The court decided that the law must, first and foremost, ensure clarity of the pregnant woman's legal position.

Dr Adam McAuley a lecturer and specialist in international human rights law in the School of Law and Government at Dublin City University, believes the three Irish women will succeed "because Irish abortion law is in a worse state than the invalid Polish law”. Dr McAuley further argues: “Ireland can settle the case by undertaking to propose legislation reflecting the approach set out by the European court in the Polish case. Such legislation would clarify the operation of the law for women and the medical profession. Surely, this is a better approach than fighting a case that Ireland looks certain to lose.”