The Committee’s opinion is consistent with the critical approach that it has taken regarding regulation of abortion in general and Ireland’s highly restrictive criminal laws in particular. The Committee has consistently taken the position that such restrictions must not violate the human rights of women.
1. Why did the Committee decide that the woman was subjected to cruel, inhuman or degrading treatment?
Amanda Mellet was in a highly vulnerable position, having just learned that the foetus she had carried would die. The Committee, which is an independent body of experts charged with overseeing State implementation of the International Covenant on Civil and Political Rights (ICCPR), found that her suffering was exacerbated by Irish law, which criminally prohibits women in such circumstances from obtaining a lawful abortion in Ireland. Although women can lawfully obtain an abortion abroad, women who do are denied the protection and coverage of the public health care system, they must travel abroad at personal expense, without public or private health insurance, and they are denied post-abortion and bereavement care that is available to other women.
Ms. Mellet was not given information about her medical options from her public doctors, who simply used the euphemism that some people “travel,” and she received incomplete information from the private family planning organization she was referred to. The need to travel delayed her access to an abortion; she had to raise the funds to travel to the UK; she and her husband had to return within 12 hours, while she was still bleeding, weak and light-headed, because they could not afford to stay longer in the UK; she was denied post-abortion and bereavement care under the Irish health care system; she suffered the pain and stigma of having terminated her pregnancy in a country that criminally punishes such conduct, and perhaps most traumatically, she received the ashes of her foetus unexpectedly by courier three weeks later.
The Committee found that Ms. Mellet’s grief and trauma was further exacerbated by the Abortion Information Act, which purports to allow medical professionals to provide information about legally available abortions, but which criminalizes “promoting” or “supporting” abortion and only allows written information to be provided on request. This legal framework has a chilling effect that inhibits medical professionals from providing information about safe and legally available abortions, and indeed, Ms. Mellet did not receive such information from her doctors in this case.
The Committee concluded that taken together, these elements subjected Ms. Mellet to cruel, inhuman or degrading treatment.
2. Irish women can seek abortion abroad, so doesn’t Ireland’s position reflect a more nuanced position than often portrayed?
There is a fundamental contradiction in the Irish legal framework, in that abortion is criminally punished with imprisonment in Ireland, but women may lawfully seek abortion abroad. Ms. Mellet’s case makes clear that this does not result in equal treatment for women who need abortion services: the system imposes significant physical, emotional and financial hardship on women who make the lawful choice to terminate the pregnancy – costs that are not borne by women who decide to continue carrying the dying foetus, who remain under the full protection of the Irish health care system. The government thus treats women who travel for termination as less deserving of support and access to needed medical services.
3. You say she was discriminated against. In what way?
The Committee found that the Irish government failed to adequately take into account Ms. Mellet’s medical needs and socio-economic circumstances, and discriminated against her in relation to other similarly situated women. It noted two grounds for the finding of discrimination – discrimination based on socio-economic circumstances, which disadvantages women who cannot readily afford to travel abroad to obtain an abortion, as well as Ms. Mellet’s claim that the Irish system improperly reflects gender-based stereotypes of the reproductive role of women as mothers.
4. Is the Committee calling on Ireland to legalise abortion? Doesn’t that mean asking the Irish government to go against the wishes of the Irish electorate?
The Committee concluded that Ireland is obligated to provide full reparation to Ms. Mellet, including compensation, and to prevent similar violations in the future by amending its laws, including the Constitution if necessary, in order to ensure effective, timely and accessible procedures for pregnancy termination in such circumstances. With respect to the Irish electorate, Ms. Mellet and the Irish government provided the Committee with differing perspectives on the views of the Irish public. But fundamentally, human rights are not the subject of public opinion polls. Human rights exist precisely to protect individuals whose rights may not be adequately respected by the majority.
5. What other steps do you expect Ireland to take?
In addition to providing full reparation to Ms. Mellet and amending its laws on abortion, the Committee called upon Ireland to ensure that health care providers are not chilled by the threat of criminal punishment from providing women like Ms. Mellet with full information on safe abortion services. This was also a concern that the Committee raised in 2014 when it reviewed Ireland’s implementation of the ICCPR.
6. What happens if Ireland doesn’t take the actions you call for?
The Committee is an independent expert body, established by the Covenant specifically to supervise application of that treaty. It is thus the internationally appointed guardian of the Covenant with unique and authoritative legal expertise. It does not have an enforcement arm, and securing compliance is left to others. That said, by ratifying the Covenant and its Optional Protocol, Ireland has committed to comply in good faith with its human rights obligations.
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