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.