European Court Finds Ireland’s Abortion Law Violates Rights of Pregnant Woman with Cancer

Jodi Jacobson

In a victory for Irish women, and to some degree women everywhere, the European Court of Human Rights today ruled that Ireland's strict law forbidding abortions even in dire circumstances violated the right to life of a pregnant woman suffering from cancer.

In a victory for Irish women, and to some degree women everywhere, the European Court of Human Rights today ruled that Ireland’s strict law forbidding abortions even in dire circumstances violated the right to life of a pregnant woman suffering from cancer. The ruling comes the same week that the Roman Catholic Diocese of Phoenix, Arizona, castigated a Catholic hospital for allowing an abortion that saved a woman’s life.

In Ireland, according to a Human Rights Watch (HRW) report, “abortion is legally restricted in almost all circumstances, with potential penalties of penal servitude for life for both patients and service providers, except where the pregnant woman’s life is in danger.”

There is, however, notes HRW:

little legal and policy guidance on when, specifically, an abortion might be legally performed within Ireland. As a result, some doctors are reluctant even to provide pre-natal screening for severe fetal abnormalities, and very few – if any – women have access to legal abortions at home.

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The specific case heard by the court, based in Strasbourg, France, relates to a decision by Ireland’s Supreme Court in 1992 requiring Ireland to clarify the conditions under which a legal abortion might take place. 

The government, however, failed to act in response to the 1992 ruling. 

According to the Associated Press:

Ireland has resisted [clarifying its laws] despite a 1992 judgment from the Irish Supreme Court that said abortions should be legalized in Ireland in all cases where the woman’s life is endangered by continued pregnancy — including by a woman’s threats to commit suicide.”

Based on arguments heard in the current case, the 17 judges of the European court arrived at an 11-6 verdict charging that Ireland was wrong to keep the legal situation unclear and that the Irish government “had offered no credible explanation for its failure.”

The specific case in question was brought before the court in 2005 when, according to AP, “the Irish Family Planning Association took Ireland’s government to court on behalf of three women who had to travel overseas that year for abortions: an Irish woman who had four previous children placed in state care, an Irish woman who didn’t want to become a single mother, and a Lithuanian woman living in Ireland who was in remission from cancer.”

The judges said the first two women had failed to demonstrate that their pregnancies represented a sufficient risk to their health, but the Lithuanian woman had her right to life threatened. It ordered Ireland to pay her 15,000 euros ($20,000) in damages.

The woman, reported the New York Times:

[is] a Lithuanian who lived in Ireland and whose name was withheld in court documents, [and who] feared that her rare form of cancer might relapse during her pregnancy if she reduced her treatment, and that the fetus would be harmed if she did not. Her life was in danger, the court found, yet she was not provided access to abortion services in Ireland even though the “underlying constitutional right to an abortion in the case of a qualifying risk to life was not disputable.”

The judges, reported AP, lambasted Ireland’s defense claiming that the woman should have petitioned the Irish High Court for the right to have an abortion in Ireland. They said Irish doctors must be given clear legal guidance on the rules for deeming women eligible for abortions.

According to the judges:

“[Ireland’s failure] has resulted in a striking discordance between the theoretical right to a lawful abortion in Ireland on grounds of a relevant risk to a woman’s life, and the reality of its practical implementation,” the judges wrote.

As reported in the NYT, the court said “even those national guidelines [in existence] for how doctors are to approach the question of abortion are unclear to the point of being unhelpful.” “Against this background of substantial uncertainty,” the judges wrote in their decision, “the Court considers it evident that the criminal provisions of the 1861 Act [the original law on which Ireland’s abortion ban is based] would constitute a significant chilling factor for both women and doctors in the medical consultation process.”

While the court upheld broader restrictions on abortion in Ireland, it clearly underscored the need to clarify–and to prevent a “chilling effect” on doctors and patients as a result of–vague abortion laws and policies that effectively prohibit safe abortion even in cases where they are technically legal. 

The Irish judge on the panel, Mary Finlay Geoghegan, sided with that majority view, according to AP, which also noted that the judgement will “put Ireland under pressure to draft a law extending limited abortion rights to women whose pregnancies represent a potentially fatal threat to their own health.”

The 18-year delay has left the abortion rights of thousands of women in legal limbo, obliging many to travel overseas for the procedure rather than rely on Irish doctors fearful of being prosecuted.

The 1992 Irish Supreme Court case initially charging the government with the obligation to clarify its laws stemmed from a lawsuit brought by a 14-year-old rape victim who sought to travel abroad for an abortion.  The government tried to stop her, “arguing it could not facilitate an illegal act, even though she was threatening to commit suicide.”

According to AP:

The Irish Supreme Court ruled that traveling to obtain abortions abroad was legal, and Ireland itself should provide abortions in cases where a continued pregnancy would threaten the life of the woman. Ireland in 1992 passed a law permitting women the right to travel abroad for abortions.

Today, women in Ireland facing an unintended and untenable pregnancy effectively have three options. One is to travel abroad if they have or can find the money.  The other is to import drugs and attempt a do-it-yourself procedure. And the third is to be forced to carry a pregnancy to term and give birth, against their will.  Given these realities, even incremental progress on abortion rights in Ireland is considered a success.

AP notes that the reactions of women’s rights and health groups on the decision were universally positive:

The Irish Family Planning Association and an Irish lobbying group, Doctors for Choice, welcomed the verdict.

“[It] leaves no option available to the Irish state other than to legislate for abortion services in cases where a woman’s life is at risk,” said Niall Behan, head of the association.

“Doctors can feel vindicated today. For the first time we can feel confident about discussing abortion as an option for women in medical need without fearing prosecution,” said Dr. Mary Favier, director of Doctors for Choice.

The decision could have ramifications beyond Ireland.  Lack of clarity on abortion laws and lack of access to services needed in a timely manner denies women the right to life in many countries where abortions laws are generally restrictive but where ostensibly women can obtain an abortion if their lives or health are in danger.  This case may spark the necessary public discussion and in-country attention to obstacles to safe abortion care to further clarify laws and policies in countries where they remain cloudy.

Moreover, coming as it does when the Catholic Diocese of Phoenix itself seeks to deny women life-saving care, it further shines a light on the role of the Vatican and the hierarchy of the Catholic Church in denying women’s rights when a pregnancy threatens their lives or their health. 

Analysis Law and Policy

Federal Court Says Trans Worker Can Be Fired Based on Owner’s Religious Beliefs

Jessica Mason Pieklo

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

When the U.S. Supreme Court ruled in 2014 in Burwell v. Hobby Lobby that the owners of secular for-profit businesses could challenge laws they believed infringed on their religious liberties, civil rights advocates warned that the decision was just the start of a new wave of litigation. On Thursday, those predictions came true: A federal district judge in Michigan ruled that a funeral home owner could fire a transgender worker simply for being transgender.

The language of the opinion is sweeping, even if the immediate effect of the decision is limited to the worker, Aimee Stephens, and her boss. And that has some court-watchers concerned.

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

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According to court documents, Stephens, an employee at Detroit’s R.G. & G.R. Funeral Homes, gave her boss—the business’ owner—a letter in 2013 explaining she was undergoing a gender transition. As part of her transition, she told her employer that she would soon start to present as a woman, including dressing in appropriate business attire at work that was consistent both with her identity and the company’s sex-segregated dress code policy.

Two weeks later, Stephens was fired after being told by her boss that what she was “proposing to do” was unacceptable and offensive to his religious beliefs.

In September 2014, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Stephens, arguing the funeral home had violated Title VII of the federal Civil Rights Act, which prohibits employment discrimination. According to the EEOC, Stephens was unlawfully fired in violation of Title VII “because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.”

Title VII of the Civil Rights Act allows those employees who have been discriminated against in the workplace to collect money, known as civil damages. Those damages usually come in the form of lost wages, back pay, and funds to make up for—to some degree—the abuse the employee faced on the job. They are also designed to make employers more vigilant about their workplace culture. Losing an employment discrimination case for an employer can be expensive.

But attorneys representing Stephens’ employer argued that the Religious Freedom Restoration Act (RFRA) protected their client from legal liability for firing Stephens. On Thursday, a federal court agreed. It said that paying such damages for unlawfully discriminating against an employee could amount to a substantial burden on an employer’s religious beliefs. 

According to the court, despite the fact that Stephens’ boss admitted he fired her for transitioning, and despite the fact that the court found this admission to be direct evidence of employment discrimination, RFRA can be a defense against that direct discrimination. To use that defense, the court concluded, all the funeral home owner had to do was assert that his religious beliefs embraced LGBTQ discrimination. The funeral home had “met its initial burden of showing that enforcement of Title VII, and the body of sex-stereotyping case law that has developed under it, would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs,” the court wrote.

In other words, Hobby Lobby provides employers a defense to discriminating against LGBTQ people on the basis of religious beliefs.

“The RFRA analysis is extremely troubling, and the implications of it [are] as well,” said Knight. “I believe this is the first case applying RFRA to a Title VII claim with respect to nonministerial employees.”

If the scope of the opinion were broader, Knight continued, “this would allow [employers in general] to evade and refuse to comply with uniform nondiscrimination law because of their religious views.”

This, Knight said, is what advocates were afraid of in the wake of Hobby Lobby: “It is the concern raised by all of the liberal justices in the dissent in Hobby Lobby, and it is what the majority in Hobby Lobby said the decision did not mean. [That majority] said it did not mean the end of enforcement of nondiscrimination laws.”

And yet that is exactly what we are seeing in this decision, Knight said.

According to court documents, Stephens’ boss has been a Christian for more than 65 years and testified that he believes “the Bible teaches that God creates people male or female,” that “the Bible teaches that a person’s sex is an immutable God-given gift, and that people should not deny or attempt to change their sex.” For Stephens’ former boss, Stephens’ transition to a woman was “denying” her sex. Stephens had to be fired, her boss testified, so that he would not be directly complicit in supporting the idea that “sex is a changeable social construct rather than an immutable God-given gift.”

If the “complicit in denying God’s will” sounds familiar, it should. It has been the exact argument used by businesses challenging the birth control benefit of the Affordable Care Act. Those business owners believe contraception is contrary to God’s will and that complying with federal law, which says birth control should be treated in insurance policies as any other preventive service, makes them complicit in sin. Thursday’s decision cites Hobby Lobby directly to support the court’s conclusion that complying with federal nondiscrimination law can be avoided by asserting a religious objection.

Think of the implications, should other courts follow this lead. Conservatives have, in the past, launched religious objections to child labor laws, the minimum wage, interracial marriage, and renting housing to single parents—to name a few. Those early legal challenges were unsuccessful, in part because they were based on constitutional claims. Hobby Lobby changed all that, opening the door for religious conservatives to launch all kinds of protests against laws they disagree with.

And though the complaint may be framed as religious objections to birth control, to LGBTQ people generally, and whatever other social issue that rankles conservatives, these cases are so much more than that. They are about corporate interests trying to evade regulations that both advance social equity and punish financially those businesses that refuse to follow the law. Thursday’s opinion represents the next, troubling evolution of that litigation.

CORRECTION: This article has been updated to clarify John Knight’s position with the American Civil Liberties Union of Illinois.

Analysis Law and Policy

‘Whole Woman’s Health’ Breathes New Life Into Voting Rights Cases

Imani Gandy

It is no longer acceptable—at least in theory—for state legislators to announce that a particular restriction advances an interest in women’s health and to expect courts and the public to take them at their word. The same goes for, as it turns out, voting rights.

It has been a good summer for reproductive rights advocates. A little over a month ago, the U.S. Supreme Court in Whole Woman’s Health v. Hellerstedt struck down two burdensome restrictions in a Texas omnibus anti-abortion law. The Court’s opinion was so data and fact-driven, it signaled to reproductive rights advocates that science and evidence had finally made a comeback in the courts, especially when it comes to laws that burden constitutional rights.

It is no longer acceptable—at least in theory—for state legislators to announce that a particular restriction advances an interest in women’s health and to expect courts and the public to take them at their word.

The same goes for, as it turns out, voting rights.

Conservative legislators across the country have been complaining about voter fraud for years. As soon as the U.S. Supreme Court gutted the Voting Rights Act in Shelby County v. Holder in 2013, states like Texas and North Carolina rushed to enact and implement legislation requiring voter identification, which disproportionately disenfranchised Black and Latino voters. And even though no state has been able to offer proof of any in-person voter fraud crisis—because no such crisis exists—that hasn’t stopped states from continuing to pass laws aimed at slaying the phantom voter fraud demons.

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But there has been a palpable momentum shift in the GOP’s war on voting: Voting rights advocates seem to be winning, with a little help from Whole Woman’s Health.

It may surprise you that Whole Woman’s Health has popped up in cases involving voter ID laws. But since Whole Woman’s Health’s victory in June, four states have seen their voter ID laws either weakened or eliminated entirely. Two of the decisions in those cases, Wisconsin’s and Texas’, specifically reference Whole Woman’s Health.

First, in Wisconsin, a district court judge cited Whole Woman’s Health in a decision weakening that state’s voter ID law. There, District Court Judge Lynn Adelman ruled that voters who were unable to obtain voter ID could still vote by signing an affidavit as to their identity. Wisconsin protested that the court’s affidavit fail-safe provision would undermine the integrity of Wisconsin’s elections, but offered no proof to back up its claim.

“The Supreme Court recently reiterated that where a state law burdens a constitutional right, the state must produce evidence supporting its claim that the burden is necessary to further the state’s claimed interests,” Adelman wrote, citing Whole Woman’s Health. Evidence. Not just baseless, transparently false claims about a law’s purpose, but evidence.

And in Texas, two Fifth Circuit Court of Appeals judges cited Whole Woman’s Health in a concurring opinion invalidating Texas’ voter ID law. Amazingly, even a full panel of the ultra-conservative Fifth Circuit Court of Appeals ruled that Texas’s voter ID law disproportionately burdened Black and Latino voters, and therefore violated the Voting Rights Act.

In a concurring opinion, Judge Stephen Higginson acknowledged that combating voter fraud and promoting voter confidence were legitimate state interests, but, he said, again citing Whole Woman’s Health, simply asserting those interests doesn’t immunize a voter ID law from all challenges.

“[A]s the Supreme Court recently reminded [us], that a state interest is legitimate does not necessarily mean courts should ignore evidence of whether a specific law advances that interest or imposes needless burdens,” he wrote for himself and Judge Gregg Costa.

The message from Wisconsin and Texas is clear: If a state is going to claim that a particular law is going to fix a particular problem, that state needs to prove it. Courts will not rubber-stamp laws that needlessly burden constitutional rights without actually doing anything to fix the problem they were supposedly enacted to fix. And that’s a noticeable shift stemming from Whole Woman’s Health.

Other crucial voting rights victories this month have, as Stephen Colbert might put it, a Whole Woman’s Healthiness about them.

In North Carolina, while Whole Woman’s Health was not featured in the the Circuit Court of Appeals’ defenestration of that state’s sweeping election law, you can certainly feel its presence.

North Carolina passed its sweeping law after requesting data that showed which voting mechanisms Black people used the most, and then eliminating those mechanisms. For example, the racial data the legislature received showed that Black voters disproportionately used early voting in 2008 and 2012. So, North Carolina eliminated the first week of early voting, shortening the total early voting period from 17 to ten days.

The Fourth Circuit ripped North Carolina to shreds for it.

“Although the new provisions target African Americans with almost surgical precision,” Circuit Judge Diana Gribbon Motz wrote for a unanimous court, “they constitute inapt remedies for the problems assertedly justifying them and, in fact, impose cures for problems that did not exist.”

In other words, North Carolina’s voter ID provision was about as useful at combating voter fraud and promoting voter confidence as the admitting privileges and ambulatory surgical center provisions in Texas’ HB 2 were at promoting women’s health and safety: that is to say, not very useful at all.

In Michigan, District Court Judge Gershwin A. Drain expressed skepticism at Michigan Republicans’ rationale for banning straight-party voting. Michigan claimed that the prohibition would help “preserve the purity of elections,” and “guard against abuses of the elective franchise.” The state also argued that the law would demand that voters be more knowledgeable about candidates and would encourage voters to make selections based on criteria other than party affiliation.

But Michigan didn’t submit any evidence to prove its claims, and Judge Drain wasn’t buying it.

“Michigan has not demonstrated how straight-party voting has damaged, or could possibly damage, the ‘purity’ of the election process,” District Court Judge Gershwin A. Drain wrote. “There is nothing ‘impure’ or ‘disengaged’ about choosing to vote for every candidate affiliated with, for example, the Republican Party,” Drain continued.

“Moreover, the idea that voting one’s party reflects ignorance or disengagement is, ironically, disconnected from reality,” he continued. “Even if ‘disengaged’ voting was problematic—and it is not—the Court finds that [the law] does nothing to encourage voters to be any more ‘engaged.’”

In North Dakota, plaintiffs challenged a law that required voters to present certain forms of voter ID and that did not have a “fail safe” provision which would enable a person who did not have the required voter ID to vote, which had existed before the law’s implementation in 2013. Plaintiffs claimed that the law severely burdened the Native American population in North Dakota, and submitted affidavits, studies, surveys, and other data in order to prove it. In response, North Dakota submitted nothing—not a shred of evidence that would back up its claim that the voter ID law was necessary to combat voter fraud.

Nothing wasn’t enough for Judge Daniel L. Hovland, who blocked the law.

“The undisputed evidence before the Court reveals that overcoming these obstacles can be difficult, particularly for an impoverished Native American,” he wrote.

Recognizing North Dakota had a valid interest in preventing voter fraud and promoting voter confidence, Hovland ruled that “those interests would not be undermined by allowing Native American voters, or any other voters who cannot obtain an ID, to present an affidavit or declaration in lieu of one of the four forms of permissible voter IDs.”

“No eligible voter, regardless of their station in life, should be denied the opportunity to vote,” Hovland said.

The losses suffered by Republican-dominated legislatures in Wisconsin, North Carolina, Michigan, and North Dakota, combined with federal court decisions striking down other voter restrictions in Kansas and Ohio (both decisions pre-date Whole Woman’s Health but certainly fit into a post-Whole Woman’s Health zeitgeist) suggests that judges are, as Mark Joseph Stern put it in Slate, “fed up with being treated like dolts by Republican legislators who lie through their teeth about the intent of draconian voting restrictions.”

Whole Woman’s Health has provided those irritated judges extra ammunition to shoot down unnecessary voter ID laws.

In a post-Whole Woman’s Health world, courts do not have to simply accept whatever lies a legislature decides to tell as “legislative fact.” If when a legislature says “to promote women’s health and safety,” it is nevertheless apparent that it means “to reduce abortion access,” then that law will not, as Justice Ruth Bader Ginsburg put it in her two-paragraph Whole Woman’s Health concurrence, survive judicial inspection.

The same can be said of voting rights. Courts do not have to accept “to preserve the integrity of elections” as an explanation when the obvious goal is “to keep people of color from voting.”

States can still say anything. But now, it’s more likely that they’ll have to prove it.

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