UN Human Rights Committee Finds that Ireland’s Abortion Ban Violates the ICCPR

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Last week the UN Human Rights Committee delivered an important decision in Mellet v. Ireland, finding that, as applied to the claimant, the Irish ban on abortion violated several articles of the ICCPR. This was because the ban extended even to pregnancies, like the claimant’s, where the foetus was diagnosed with a fatal abnormality, so that it would either die in utero or shortly after delivery. The claimant was thus forced by Irish law to choose between carrying the baby to term, knowing that it would inevitably die in her womb or immediately after birth, or having to travel to the UK to get an abortion. The claimant chose the latter option, at great personal expense and with a lot of pain and indignity along the way, including having the ashes of her baby unexpectedly delivered to her by courier a few weeks after the abortion.

The Committee was unanimous on the bottom line of the case, which is that the abortion ban, as applied to the claimant, constituted cruel, inhuman or degrading treatment in violation of Article 7 of the Covenant, as well as a violation of her right to privacy under Article 17 of the Covenant. While the reasoning of the Committee is at times laconic (as is unfortunately the norm with its views), the basic idea behind the decision was essentially that even if the claimant’s rights were subject to an implicit or explicit balancing exercise, in light of the fact that her unborn child would inevitably die there was nothing to balance with the intrusions into her own interests. In other words, Irish law forced her to endure significant suffering for no real purpose, since the unborn child would die anyway.

The Committee’s views in this case are thus confined to its specific circumstances; it has not created a right to abortion on demand or asked Ireland to liberalize access to abortion fully, but to (at the very least) create an exception to its ban that would accommodate women in the claimant’s situation. The main problem here is that the Irish abortion ban stems from a constitutional provision, which was interpreted by the Irish Supreme Court as only allowing for an exception if there is real risk to the life, but not to the health, of the mother. Ireland can thus comply with the Committee’s recommendation only if the Supreme Court revisits the issue and carves out another exception, or if the Constitution itself is amended, which requires a popular referendum. In other words, this is one of those rare cases where domestic constitutional provisions as authoritatively interpreted by domestic courts are themselves violative of international human rights law; this does not change anything as a matter of international law, but clearly it creates specific political challenges for compliance (cf. the Sejdic and Finci judgment of the Strasbourg Court). See more on this point in this post by Fiona de Londras on the Human Rights in Ireland blog; this post by Mairead Enright has more analysis of the Committee’s decision.

The basic outcome that the Committee has reached is in my view clearly correct, even if again some of its reasoning could have been more developed. But perhaps the legally most interesting aspect of the case – and one that provoked some disagreement among the Committee’s members – is non-discrimination. The Committee also found a violation of Article 26, the general equality guarantee of the ICCPR, as follows:

7.10  The Committee notes that under the legal regime in the State party, women pregnant with a foetus with a fatal impairment who nevertheless decide to carry the foetus to term continue to receive the full protection of the public health care system. Their medical needs continue to be covered by health insurance, and they continue to benefit from the care and advice of their public medical professionals throughout the pregnancy. After miscarriage or delivery of a stillborn child, they receive any needed post-natal medical attention as well as bereavement care. By contrast, women who choose to terminate a non-viable pregnancy must do so in reliance on their own financial resources, entirely outside of the public health care system. They are denied health insurance coverage for these purposes; they must travel abroad at their own expense to secure an abortion and incur the financial, psychological and physical burdens that such travel imposes, and they are denied needed post-termination medical care and bereavement counselling. The Committee further notes the author’s uncontested allegations that in order to secure a termination of her non-viable pregnancy, the author was required to travel abroad, incurring financial costs that were difficult for her to raise. She also had to travel back to Dublin only 12 hours after the delivery, as she and her husband could no longer afford to stay in the UK.

7.11  In its General Comment No. 28 on non-discrimination the Committee states that “not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant”. The Committee notes the author’s claim that Ireland’s criminalization of abortion subjected her to a gender-based stereotype of the reproductive role of women primarily as mothers, and that stereotyping her as a reproductive instrument subjected her to discrimination. The Committee considers that the differential treatment to which the author was subjected in relation to other similarly situated women failed to adequately take into account her medical needs and socio-economic circumstances and did not meet the requirements of reasonableness, objectivity and legitimacy of purpose. Accordingly, the Committee concludes that the failure of the State party to provide services to the author that she required constituted discrimination and violated her rights under article 26 of the Covenant.

There appear to be two grounds of discrimination here, both without sufficient objective and reasonable justification. First, the claimant was discriminated when compared against other women with a fatally ill foetus who decided that they would carry the pregnancy to term, who were (unlike the claimant) given access to state health care and support services. Second, the claimant was discriminated against other women who were in a better financial or socio-economic situation, for whom the possibility of traveling to the UK for an abortion was not so burdensome. One of the Committee’s 17 members, Anja Seibert-Fohr, dissented on this point, finding that the Committee did not sufficiently explain what the grounds for distinction were, that the violation was absorbed in prior findings and that some aspects of the communication were inadmissible.

On the other hand, 5 Committee members (in 3 separate opinions) would also have found discrimination on the basis of sex or gender, i.e. that the claimant was discriminated when compared to men. This discrimination claim ran against the state’s argument that the claimant was not in a comparable position to men, since men could not be pregnant; comparability tests are ubiquitous in non-discrimination cases when the analysis rests on grounds of formal equality or direct discrimination. For the 5 concurring members, however, the Committee should have found a further violation using a substantive conception of equality, focusing on indirect discrimination. Here is how Sarah Cleveland powerfully puts it in her concurring opinion:

6. The view that differences in treatment that are based on biological differences unique to either men or women cannot be sex discrimination is inconsistent with contemporary international human rights law and the positions of this Committee. Under such an approach, apparently it would be perfectly acceptable for a State to deny health care coverage for essential medical care uniquely required by one sex, such as cervical cancer, even if all other forms of cancer (including prostate cancer for men) were covered. Such a distinction would not, under this view, treat men and women differently, because only women contract cervical cancer, as a result of biological differences unique to women. Thus there would be no comparable way in which men were treated differently.

12. Women’s unique reproductive biology traditionally has been one of the primary grounds for de jure and de facto discrimination against women. This is true when women are treated differently from men based on stereotyped assumptions about their biology and social roles, such as the claim that women are less able to take full time or demanding jobs than men. It is equally true when apparently gender-neutral laws disproportionately or exclusively burden women because they fail to take into account the unique circumstances of women. Both types of laws subject women to discrimination.

13. Ireland’s near-comprehensive criminalization of abortion services denies access to reproductive medical services that only women need, and imposes no equivalent burden on men’s access to reproductive health care. It thus clearly treats men and women differently on the basis of sex for purposes of article 26. Such differential treatment constitutes invidious sex and gender discrimination unless it reasonable and objective to a legitimate purpose under the Covenant – requirements that the Committee found were not satisfied here.

All of the separate opinions are well worth the read, and (whatever position one takes) could be put to good use in the classroom. In any event, it remains to be seen whether the Committee’s views will ultimately provoke a change in Irish law. The Irish Government has so far committed to holding a consultative assembly before it decides whether to hold a referendum on any constitutional change.

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Jakob Cornides says

June 14, 2016

Marko, this "decision" isn't one.

As the title of the document ("Views adopted by the Committee…") clearly indicates, it is a legal opinion. One may, or may not, share it – but it is not binding on anyone. Calling it a "decision" is a regrettable mis-representation.

As far as I am concerned, I am afraid disagree with the Committee's views. But I agree with you that they are important – not because of what they tell us about a pretended "right to abortion", but because of what they tell us about the Committee, which, as it appears, wants to replace the universally accepted Right to Life through a newly fabricated "Right to Kill".

In short summary, the Committee's opinion seems to be that, when a woman is pregnant with a child that "would inevitably die" (your words), preventing her from having an abortion constitutes a "cruel, inhuman or degrading treatment" in violation of Article 7 of the Covenant, as well as a "violation of her right to privacy" under Article 17 of the Covenant. This raises many questions, both with regard to the strange and novel moral principle that the Committee apparently wishes to erect, but also with regard to some of the terminology it is (mis)using to achieve this purpose:

1. In the very first place, it seems worthwhile to look at the factual side of the case – and at the way in which it is presented by the Committee. In several places in the document, the Committee uses the term "non-viable" to describe the applicant's unborn child or her pregnancy. In that context it should be noted that the term "(non-)viability" made its first appearance in the given context in the US Supreme Court's ignominious decision Roe v. Wade, where "non-viability" was one of the makeshift criteria to justify that mothers should have the "right" to kill their babies.
But in Roe v. Wade the term had a different meaning: it was applied not to an impaired child, but to every child – the argument being that the legal protections of the US Constitution for the child's right to life only set in at a time when the child would be "viable", i.e. able to survive outside the mother's womb. The result is a gradated approach: no protection during the first months of the pregnancy, limited protection thereafter, full protection only after birth. In the legal opinion at hand, "non-viability" appears to relate to the fact that the unborn child was impaired, so that it was to be expected to die before or soon after its birth.

2. The difference is, of course, not unimportant. Removing the body of a fetus who has died (of natural causes) during the mother's pregnancy is not what is called "abortion", and – if I am not wrong – there is nothing in Irish law that would forbid or prevent such a procedure (which is indeed a medical necessity … I know of a case in my wider family, back in the 1930s, where a young woman died from sepsis because she was, without being aware of the fact, carrying a child that had died inside her womb at a very early stage of pregnancy). But this is of course not what we are speaking about here. In actual fact the applicant's concern apparently was not that her child was "non-viable", but quite the opposite: that the child might in fact be "viable" (in the sense of Roe vs. Wade), i.e. that it might be born alive and then stay alive for some time … perhaps even for some years, during which it would require special care. This is why she wanted an abortion.

I am not a medical expert, but according to what I read in Wikipedia, most of the children diagnosed with Trisomia 18 (the condition from which the applicant's child allegedly suffered) die within a few days or weeks after their birth, while 8% of infants survive longer than 1 year. One percent of children even live to age 10.

This is what is hidden behind the Committee's concept of "non-viability": a child that is born alive, but severely handicapped.

3. The facts of the case are further obfuscated in point 2.4 of the opiniuon, where one reads that the applicant "received further medication to induce labor. She was in labor for 36 hours and on 2 December she delivered a stillborn baby girl."

A "stillborn" baby girl??? The common usage of the term is that a baby is stillborn when it is born dead, having died from natural causes inside the mother's womb. If the baby dies outside the womb, one would say: it died immediately after birth. But certainly one would not use the term "stillborn" for a baby that has in fact been aborted, i.e. deliberately killed. So, the question is now: was the baby stillborn, or was it killed. Was the labor induced with the intention of inducing an abortion, or was the intention to extract a dead child from the womb, or to give birth to a living child? Irish law certainly would have permitted the latter two intentions, which raises the question why the applicant claims that she had to travel to England to receive treatment. But in this case, the Committee's legal opinion would be devoid of a factual background.

If, on the other hand, the child was in fact deliberately killed inside the mother's womb, then (and only then) we can speak of an abortion. And in this case the question arises whether the law prohibiting abortion is in any way violating any of the applicant's rights.

4. I genuinely sympathise with the situation of a woman who, rather than with the prospect of giving birth to a healthy child that will grow up to become strong and beautiful, is confronted with the news that the child she is pregnant with is impaired, will require special care, and perhaps has a reduced life expectancy. And of course a woman in such a situation is entitled to all the support society can give her. Nevertheless, we should be honest to ourselves: the alleged "imposition" that was so dreaded by the applicant, and that was qualified as "cruel and inhuman treatment" by the Committee, did not really have to do with any of the experiences that are so colourfully and heart-wrenchingly described in point 7.4 of the document. Instead, the "cruel and inhuman" imposition was that, for a duration that was hard to predict, she was going to have to care for a handicapped child.

Thus the real question to be discussed here (or should I say: the real assumption lying at the base of this opinion?) is quite different from what the Committee pretends it to be. The issue is not whether the applicant was "obliged to travel abroad" for an abortion (very obviously, nobody obliged her to do that), or that she was "denied basic healthcare" (very obviously, an abortion is not basic healthcare, just as a pregnancy is not a disease).
The issue was that the laws of Ireland did not provide the applicant a license to kill her child in case it were "viable". And thus, the real question is: is having to care for a severely handicapped person something that can/must be qualified as "cruel and inhuman treatment"?

5. Once we apply ourselves to using precise and correct language, the Committee's argumentative edifice falls asunder like a house of cards. Because in that case the whole discussion takes quite a different direction: if having to care for a severely handicapped baby is a "cruel and inhuman" imposition for that baby's parents, then having to care for any severely handicapped person must equally be so qualified – for why should caring for a handicapped child be more of an imposition than for a handicapped adult? Should people have a right to get rid of their sick and handicapped relatives, because having to care for them is "cruel and inhuman" – not for the sick and handicapped themselves, but for their caregivers? Ultimately the question is: which place do we accord to the sick and elderly in our society? Do they have a right to life like any other human person? Or a somewhat reduced right to life? Or no right at all?

Jakob Cornides says

June 14, 2016

6. This leads to another aspect of Article 7 – one which unfortunately the Committee does not seem to have dealt with.
The prohibition of "cruel and inhuman treatment" evokes an image of someone (perhaps a state's agent) inflicting some kind of treatment (such as torture, or verbal abuse, or similar) on someone else. But where was the "treatment" in the case at hand?

What the applicant complained about was not any treatment that was inflicted on her, but the unavailability of a specific treatment she wanted to inflict on her child. Nobody forced her to travel to England, nobody forced her to have an abortion – instead, these choices were all made by herself and for herself. Claiming to have been "subject to cruel and inhuman treatment" is a very strange way of re-framing the issue, when what one actually wants is to get a license to treat one's own child in a way that will cause that child's premature death. One might at least have expected the Committee to examine this part of the claim with somewhat greater care – but in vain, because the legal opinion does not include any discussion of this issue.

7. Much in the same vein, one marvels at the interpretation given to the concept of the "right to privacy" in this complaint (although of course I am aware that for some years this right has been the magic wand with which the magicians of human rights interpretation can transform everything into anything…).
The original meaning of the right to privacy is that the state should not – at least not with good reasons – spy and pry on its citizens: there should be no hidden cameras and microphones in one's home, no secret control of one's correspondence, and no listening in on one's private conversations. In times of NSA and Wikileaks, nobody doubts the relevance of this right.
But what the applicant was after, and the Committee "adjudicates" to here, is something completely different: basically, it was the license to terminate someone else's life – because that "someone else" happened to dwell inside the applicant's body.
So the reasoning concerning "privacy" has been completely transformed. To be sure, it relates to everything that has to do with sexuality and, by extension, procreation (thus including not only all imaginable ways of having sex, but also the use of medically assisted procreation techniques, which in turn includes surrogacy, the sale and purchase of sperms and egg-cells, the genetic manipulation of one's offspring, etc., etc., etc. …) – and the underlying reasoning appears to be: given that these are matters pertaining to one's "private life", there must be no state interference. Every and any choice, even blatantly immoral ones, must be "respected". Or, to reframe it: I know that what I am doing is profoundly immoral – but I must be allowed to do it anyway, because my "private life" must be "respected".

8. The main issue however is abortion. And it is astonishing to see how this Committee is able to discuss the issue without dedicating even the glimpse of a thought to the unborn child's life. But the fact is: the unborn child is a human being. If not aborted, it will never develop into a dog, or a snail, or a strawberry, but into a man or woman. It has its own unique genetic identity, and is thus not simply a part of its mother. Whoever wants to justify abortion must be aware that he must come forward with an argument that justifies the killing of an innocent human being.

This is – at least in the case at hand – not a question of "balancing out" some interests of commensurate value. Without doubt the life of the mother and the life of the child would be commensurate – but Irish law in such cases gives a clear precedence to the life of the mother. This is understandable because, however heroic such a sacrifice may be, no one can be expected to give up his own life as a sacrifice to save someone else's. The case at hand, however, is not a situation in which the mother's life (or even her health) seems to have been at risk at any stage.

What remain are two different approaches. One is to openly admit that the life of one human being can be superseded by some lower-ranging interests (i.e., economic and social interests, such as the interest of not having to care for a severely handicapped child) of another. The other is to rhetorically "de-humanize" the unborn child, i.e. to claim that it is in fact not a human being (but a "lump of cells", or similar…), or to find another way of excluding it from the scope of (allegedly universal) human rights. But either way, the sad consequence of all these approaches is that human rights will no longer be universal – instead there will be some human beings who have human rights, and others who don't.

A perfect example for this is the ECtHR's regrettable decision in Vo vs. France, where the Court - on the basis of nothing but the French text of Article 2 ECHR – discovered that not every human being was a bearer of human rights, but only those who qualify as "persons". With the simple stroke of a pen, the very concept of "human rights" was abandoned and replaced by the novel concept of "person rights". But then the Court went on to say that "it is neither desirable, nor even possible as matters stand, to answer in the abstract the question whether the unborn child is a person for the purposes of Article 2 of the Convention (“personne” in the French text)."

Now this is really amazing: first the Court says that the decisive criterion to qualify for human rights protection is not being human, but being a "person" – and the next thing it says is that it doesn't know, and doesn't even want to know (!!!) what a person is. (I am wondering: what purpose has this statement that the question cannot be answered "in the abstract"? Does the Court think that the worthiness of human beings to be recognized as bearers of human rights should be assessed on a case-by-case basis??) Only one thing appears to be clear: not every human being is a "person", only some. So –contrary to every precautionary principle - the Court has given up the wider notion for the narrower one, and the more certain notion (everyone knows that an unborn child is human) for the less certain one.

The CCPR's opinion is, from the point of view of legal reasoning, even worse than Vo vs. France. While the ECtHR in Vo at least did deal with the crucial issue, the CCPR simply doesn't. While the ECtHR offered a bad argument, the CCPR offers no argument at all. While the Court failed to provide adequate protection pf the Right to Life of an entire class of human beings, the CCPR now applies itself to fabricating a completely new Right to Kill those human beings.

9. More than any other human rights issue, the abortion issue is a litmus test for human rights lawyers. Except in those rare cases where life stands against life, the attempt to justify abortion always and inevitably leads to the relativization, and thus the undermining, of the concept of "human rights" as a whole.

Siobhán Mullally says

June 16, 2016

The legal status of the UN Human Rights Committee's views in Mellet v Ireland has generated quite a bit of controversy in the Irish media. I've written a short blog post specifically on this point at: http://blogs.ucc.ie/wordpress/ccjhr/