Is there a human right to access abortion?

International human rights law does not protect a general right to access abortion.

International human rights law does require that lawful abortion would be available in situations of rape, incest, or fatal foetal anomaly.

Furthermore, international human rights law recognises that a lack of access to lawful abortion can have serious implications for the rights of women and girls.


International human rights law requires that lawful abortion is made available in cases of rape, incest and fatal foetal anomaly. Ireland has been held to be in violation of international human rights law, even to the extent of breaching the right to be free from torture, inhuman and degrading treating and punishment (Mellet v Ireland (2016); Whelan v Ireland (2017)). Both of these cases involved diagnoses of ‘fatal foetal anomalies’.

The European Court of Human Rights maintains that it is up to individual states to decide whether and, if so, when abortion should be available. However, if the law allows for abortion then it must be practically accessible. In 2011 the European Court of Human Rights found that Ireland was in breach of the European Convention on Human Rights because there were no law to regulate how women could access their constitutional right to abortion where life is at risk (A, B & C v Ireland (2011)). This led to the introduction of the current law: the Protection of Life During Pregnancy Act 2013 (see explanation here).

Where lawful abortion is not available this can have negative implications for the rights to life, the right to privacy, the right to health, the right to information, the right to equality and non-discrimination, the right to be free from inhuman and degrading treatment, the right to determine the number and spacing of one’s children, and the right to liberty. All of these rights are protected by international human rights law.

The Committee on the Rights of the Child has confirmed that vindicating children’s human rights requires ensuring the availability of appropriate reproductive healthcare including access to lawful abortion for adolescent girls:

Given the high rates of pregnancy among adolescents globally and the additional risks of associated morbidity and mortality, States should ensure that health systems and services are able to meet the specific sexual and reproductive health needs of adolescents, including family planning and safe abortion services. States should work to ensure that girls can make autonomous and informed decisions on their reproductive health.

Further Reading

Human Rights Watch, Q&A: Human Rights and Abortion (2017)

A, B & C v Ireland (2010) (& explainer)

Amanda Mellet v Ireland (2016) (& explainer)

Siobhan Whelan v Ireland (2017) (& explainer)

de Londras & Enright, Repealing the 8th: Reforming Irish Abortion Law (2018), Chapter 3

Aisling McMahon and Bríd Ni Ghráinne, “Ireland’s Violation of International Human Rights Law: A Perpetual Déja Vu“, Human Rights in Ireland, 29 July 2017

 

 

4 thoughts on “Is there a human right to access abortion?

    • The referendum does not propose replacing the 8th Amendment with a limited provision of this kind.
      The Citizens’ Assembly and Joint Oireachtas Committee, as well as the Cabinet, were of the view that a limited provision of this kind would be unduly restrictive for women, doctors, and the Oireachtas.
      Even if the preferred course of action where a change to Art. 40.3.3 this would require a referendum.

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  1. Dear Prof. DeLondras
    Thank you for your rapid reply, note I did ask you a legal question not for you to repeat the opinions of the CA and APC. Ann Rabbitte and others have suggested that an allowance for ‘hard cases’ could be achieved in law by modifying the 8th rather than removing it entirely. Is she correct legally or not, that is could such a modification be drafted or not?
    If such a modification could be drafted then full repeal is not required and hence Yes campaigners are being disingenuous at best by invoking them in support of a Yes next month.
    Thank you again
    RT8

    Like

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