Commentary Human Rights

How a UN Committee’s Ruling on Abortion in Ireland Holds Countries Accountable

Jamie J. Hagen

The case of Amanda Mellet, who had to leave Ireland to get an abortion due to a fatal fetal condition, has created a roadmap for advocates to call out the prohibition and criminalization of abortion by any country as a violation of human rights.

By now, the stories of people denied access to abortion in Ireland and facing financial, physical, and emotional hardships as a result are likely well known to reproductive rights advocates. Last year, for the first time, one Irish woman took it upon herself to appeal to the United Nations that, in being denied access to a safe and affordable abortion, her human rights were violated by the constitution of her home nation. The UN Human Rights Committee agreed that she faced “discrimination and cruel, inhumane and degrading treatment” because of Ireland’s ban on most abortions; in response, Ireland has paid her financial reparations. Now, her case has created a roadmap for advocates to call out the prohibition and criminalization of abortion by any country as a violation of human rights.

The UN Human Rights Committee Decision in Ireland

In 2011, Irish citizen Amanda Mellet was denied abortion care, even though her pregnancy involved a fatal fetal impairment. To terminate the pregnancy, Mellet had to travel to the United Kingdom. After 18 months of trying to work with the government of Ireland to change abortion legislation in her home country, Mellet decided to take her case to the UN committee. In an interview with the Guardian, she explained the power of the UN Committee to “name and shame the government internationally,” something it became clear to her was necessary for change in Ireland.

The UN Committee ruled that Mellet faced shame and stigma due to the criminalization of abortion in Ireland. Additionally, it said, Mellet was discriminated against when she was denied bereavement counseling and medical care after the abortion. The committee also noted, “Many of the negative experiences she went through could have been avoided if [she] had not been prohibited from terminating her pregnancy in the familiar environment of her own country and under the care of health professionals whom she knew and trusted.”

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The ruling by the UN Committee made three recommendations to the country for how to respond to Mellet’s lawsuit: financial support to her for the expenses incurred while traveling for abortion care, psychological counseling for Mellet, and a change to the laws of Ireland so no other women have to go through the human rights violations she experienced.

So far the Irish Parliament has only responded to the first two recommendations, but Mellet is hopeful the government will make legal changes as well. When speaking about the effect of her case via a statement through the Center for Reproductive Rights, she said, “I personally will not feel able to move on while knowing that other women continue to have to leave this country to access reproductive health services.”

“What Amanda suffered as an individual woman was wrong, and her rights were violated, but also the case was an emblematic case of the situation in which thousands of Irish women find themselves, or women living in Ireland, find themselves, every year,” Katrina Anderson of the Center for Reproductive Rights told Rewire via email.

Mobilizing for Abortion Access in Ireland

Ireland’s restrictive abortion law can only be amended by a public referendum granted by Parliament to decide whether or not to repeal the constitution’s Eighth Amendment limiting abortion access. A 100-member Citizens’ Assembly headed by Supreme Court Judge Mary Laffoy was established in 2016 to assess the possibility of a referendum. After an invitation for public comment on the topic, about 13,500 public comments have been received so far; 1,000 of these comments have been published online. The comments offer diverse viewpoints from the public and are being released on a rolling basis. Organizations were also invited to make submissions.

But Parliament is not obligated to follow the recommendations of the Citizens’ Assembly. Leah Hoctor, regional director for Europe at the Center for Constitutional Rights, is adamant that complying with the Human Rights Committee ruling for Mellet requires a change to Ireland’s law banning abortion, not simply beginning the process through the Citizens’ Assembly.

“Process is one thing; the actual result and delivery of law reform is another,” explained Hoctor.

A number of organizations, including the Abortion Rights Campaign (ARC), are capitalizing on this time to mobilize public opinion to change Ireland’s constitution. These organizations view the ruling by the UN Committee as a powerful tool for putting pressure on Parliament to make a real legal change.

“This is make-or-break time in many respects,” says Hoctor.

ARC is an all-Irish, all-volunteer movement for choice and change using the rallying cry “Repeal the Eighth.” As Grace Wilentz of ARC explained to Rewire via email, “Ireland’s abortion law does not express the will of the people. The Eighth Amendment, which was voted into our Constitution by referendum in 1983, prohibits abortion and remains the single greatest barrier to liberalizing our abortion laws.”

Of course, most women in Ireland who need an abortion aren’t doing so because of a medical threat to the fetus, as was the case in Mellet’s pregnancy. Rather, they simply want to terminate an unwanted pregnancy. With this in mind, ARC, along with a growing alliance of more than 70 organizations working together as the Coalition to Repeal the Eighth Amendment, is promoting the broad legalization of abortion services beyond the existing exceptions for medical emergencies or threat of suicide. ARC submitted an outline for free, safe, and legal abortion in Ireland to the Citizens’ Assembly.

The group’s push is supported, at least in part, by broad sentiment: In February 2016, Amnesty International and RED C published the “Attitudes to Abortion” report after conducting a poll to determine how public opinion about abortion is shifting in Ireland. The poll found that while religion is an important influencer, 82 percent of people agree that their religion’s views should not be imposed on other people. Almost three-quarters of Irish citizens 18 and older believe the government should hold a referendum, with 87 percent of those polled in favor of expanding abortion in Ireland beyond the current legislation.

ARC’s advocacy for choice is motivated by the need for safe and legal abortion for other women like Mellet. “We know that the introduction of abortion services, available at a woman’s choice, is the only way to put an end to the status quo. Wilentz noted that the Irish Family Planning Association tracked more than nine women a day traveling to the United Kingdom, the Netherlands, or other European countries to access abortion services. The association notes that the statistic is likely an underestimation, given that not all women disclosed their Irish addresses while traveling.

The UN Committee’s Work to Protect Abortion Globally

The committee’s ruling for Mellet is not the first to protect abortion as a human right. However, it is the first to rule that a country is violating a person’s human rights for criminalizing and prohibiting abortion. The first ruling by the committee that a woman was owed reparations for discriminations suffered in denial of abortion services was in 2009 to K.L., a teenage citizen of Peru; it was almost a full decade until that payment was made in 2015. In 2014, Peru changed its abortion guidelines. Payment to Mellet was much more swift, within six months of the ruling.

Kaitlyn Denzler of Amnesty International notes that the committee’s decision on the Mellet complaint strengthens work to promote abortion as a human right worldwide. Advocates in other countries, including the United States and Poland, have sought to protect access to abortion as a human right in different ways through the Human Rights Committee. They have used the UN committee periodic review of whether or not the International Covenant on Civil and Political Rights is being upheld within a nation as a forum for addressing violations to reproductive health care.

However, the reach of the human rights norms established by the UN depends on the willingness of a particular country to work within the bounds of established international human rights frameworks. Unfortunately, the United States hasn’t accepted jurisdiction of the committee that would ultimately allow a citizen to bring a complaint in the same way as Mellet. Similar to her experience, though, many women in the United States have to cross state lines to get abortion care, facing the types of discriminations the committee ruled were human rights violations.

“Though abortion is legal in the United States, with the introduction of [targeted restrictions on abortion provider] laws across the country, and the subsequent shutting down of clinics, we’re aware that the ‘abortion deserts’ in the United States stretch a lot farther than the distance from Dublin to Birmingham, [England],” noted Wilentz. These restrictions were highlighted in a 2013 report submitted to the Committee in the 2013 U.S. Review of Compliance.

Under the Trump administration, there are fears access to abortion will become even more restrictive, with the possibility of a total ban on abortion with one proposed bill. And the stance the United States takes on protecting abortion as a human right has far-reaching consequences. Trump’s reinstatement of the “Global Gag Rule” and nomination of anti-choice Governor Nikki Haley for Ambassador to the United Nations signal a rolling-back of access to reproductive health care for many around the world.

In the meantime, the decisions by Ireland’s government this year may well illustrate just how much influence the international human rights community has on ongoing local and national conversations about the restrictive laws against abortion in any country. Whatever the outcome of the Citizens’ Assembly, Amanda Mellet’s persistence in speaking up about having her human rights violated is now pivotal to the public conversation about the role of governments who continue to either implicitly or explicitly criminalize abortion.

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