venerdì, marzo 31, 2017

Commissioner’s opinion on Irish abortion law has no real legal weight

Council of Europe Commissioner for Human RightsNils Muižniekssaid in a report this week that we should introduce a British-style abortion law here. No, we shouldn’t and we don’t have to. The opinion has about as much legal weight as a feather.
Muižnieks, a former director of the Soros Foundation  (George Soros being well known for supporting pro-choice organisations) is, at the end of the day, offering an opinion that is totally unsupported by the Council of Europe’s main judicial institution, the European Court of Human Rights.
The Commissioner for Human Rights is an independent non-judicial institution established by the Council of Europe. The Commissioner visits countries that are members of the Council and expresses opinions and recommendations to local governments. His reports don’t get approved by the statutory bodies of the Council of Europe and are not binding in any sense.
In November 2016 Muižnieks visited Ireland and met some state authorities and non-governmental organisations. Following this visit, the Commissioner has published a report that covers a number of issues: the rights of Travellers and Roma, gender equality, children’s rights and, of course, abortion.

With regard to abortion, he suggested the decriminalisation of abortion within what he calls ‘reasonable gestational limits’. One wonders what these limits are.
“The Commissioner strongly urges the Irish authorities to make progress towards a legal regime governing the termination of pregnancy, including in the Constitution, that is more respectful of the human rights of women. He recommends decriminalising abortion within reasonable gestational limits. At the very minimum, abortion performed to preserve the physical and mental health of women, or in cases of fatal foetal abnormality, rape or incest should be made lawful.” (p. 2)
“Physical and mental” health grounds would make our law the same as Britain’s, where one in five pregnancies end in abortion.
In arriving at its recommendations, the report refers to documents from pro-choice organisations like Amnesty International Ireland and the Irish Family Planning Association. Needless to say, pro-life organisations don’t get a look-in. Why not?
It is extremely important to note that there is no right to abortion in the most fundamental document of the Council of Europe, namely the European Convention on Human Rights. In fact, the European Court for Human Rights, which was established on the basis of the Convention, in its ruling on the ABC case requested Ireland to clarify the legislation regarding abortion but did not create any right to abortion. Nor has it done so in any other case.
The opinions of the Commissioner, expressed in the report, put no obligations on the Irish state. They are simply recommendations.
Interestingly, Nils Muižnieks before being elected Commissioner for Human Rights, was programme director of the Soros Foundation/Latvia.
This organisation is part of a network, now called the Open Society Foundations, founded by the controversial billionaire George Soros.
Last year a leaked strategy document detailed how the Foundations planned to fund Amnesty International Ireland, the Abortion Rights Campaign and the Irish Family Planning Association for the purpose of repealing the 8th Amendment.
And in this week’s issue, The Irish Catholic has revealed that the Abortion Rights Campaign has returned a grant of $24,999 to the Open Society Foundations after being directed to do so by the Standards in Public Office Commission (SIPO) as foreign funds cannot be used for political campaigns.
Pressure from abroad to change Irish abortion laws is growing. Sometimes it takes the form of illegal funding, other times it is just a report from an opinionated politician. It has to be rejected in any case.

mercoledì, marzo 22, 2017

A bad day for religious freedom

Banning the wearing of religious symbols and garb in a place of work, like a cross or a headscarf, is not discrimination the EU’s highest court, the European Court of Justice (ECJ) has found in a ruling issued last week. This is a bad decision, but fortunately it does not directly affect national law.

If a Muslim employee of an Irish company was told she could not wear a headscarf at work, ultimately, she could take a case against the company to the Supreme Court and under our Constitution she just might win her case. We would certainly hope that is what would happen.  The ECJ ruling simply means that she would not be able to assert any rights under the European Charter of Fundamental Rights. But to repeat, this does not mean she could not assert her rights under the Irish Constitution.

The case before the ECJ involved a Muslim lady, Samira Achbita, a receptionist employed in Belgium by a company called ‘G4S’. She was dismissed because of her intention to wear the headscarf in her workplace in accordance with her religious beliefs. G4S provides reception services in the public and private sectors and its employees are “prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs”.

Ms Achbita challenged her dismissal in the Belgian courts and the Court of Cassation of Belgium asked the ECJ “if the prohibition of wearing, as a female Muslim, a headscarf at the workplace does not constitute direct discrimination, where the employer’s rule prohibits all employees from wearing outward signs of political, philosophical and religious beliefs at the workplace”. The Belgian court queried whether the European Union directive on equal treatment in employment and occupation came into play here.

The ECJ has ruled that the internal rule of the company does not introduce a difference of treatment that is directly based on religion or belief, for the purposes of the directive. This is based on the fact that the G4S’s rule covers any manifestation of beliefs without distinction and thus treats all employees in the same way by requiring them to dress neutrally. It is important to note that the Court also claimed that the national court might conclude that the internal rule might constitute indirect discrimination because the apparently neutral obligation it imposes might result to a particular disadvantage for a person adhering to a particular religion. It is for the Court of Cassation of Belgium to check if such indirect discrimination may be objectively justified by a legitimate aim, such as the pursuit of a policy of neutrality, provided that the means of achieving this aim are appropriate and necessary. The ECJ provides guidance but the national court hearing the case has sole jurisdiction to determine whether the G4S’s internal rule is justified by a legitimate aim and if it meets the requirements of appropriateness and necessity.

The ECJ also asked the Belgium court to ascertain if it would have been possible for GS4 to offer Ms Achbita a post not involving any visual contact with customers, instead of dismissing her.

The ECJ’s ruling has provoked strong reactions. The Amal Women’s Association, a Dublin based Muslim women’s organisation, condemned it as did Alliance Defending Freedom and the Church of England.

The Amal Women’s Association, a Dublin based Muslim women’s organisation, has stated “It is clear from the ruling that it is faith communities that are no longer welcome. The backing of this ruling by the highest court of justice in Europe is, in our opinion, a serious threat to the principles of equality, justice and freedoms that the EU states it advocates. Muslim women are already one of the most targeted groups in Europe. In the workplace, they face a triple penalty because of their gender, ethnicity and religion.”

Nobody should be forced to choose between their religion and their profession. A Court claiming to be a champion of human rights should safeguard the fundamental right to freedom of conscience, religion, and belief rather than undermining it. Citizen’s deeply held convictions should be reasonably accommodated by their employers, said AdinaPortaru, Legal Counsel for Alliance Defending Freedom International in Brussels.

A Church of England spokesman said: “This ruling raises significant questions about freedom of religion and its free expression. Whether it be Sikhism and the wearing of turbans and kara through to the wearing of a cross. In preferencing ‘freedom to conduct a business” above the free expression of faith the ruling potentially places corporate interest above those of the individual.”

However, Andrea Williams, Chief Executive of the Christian Legal Centre, reminded us that the ruling does not affect national law. She said: “Precisely stated, the Court of Justice made no ruling on the legality of prohibiting the wearing of religious symbols at work, it simply clarified a point of law in relation to defining the Directive, and left it to the national courts to address the substantive questions involved. …. Yesterday’s ruling in Luxembourg has not changed the law in the United Kingdom or anywhere else in the European Union. The Eweida ruling [which involved a woman who wore a small cross on her work uniform] is still the law of the land and the Christian Legal Centre is here to defend anyone who is told by their employer that they are not permitted to wear their cross at work.”

In my view the G4S’s rule is not reasonably and objectively justified and it is a case of indirect discrimination. Its policy of neutrality misunderstands the profound meaning of religious freedom and how this freedom it is different from the expression of political or philosophical beliefs. The ban is not necessary and other less restrictive means could have been employed to achieve the same end.

For many people religion is a fundamental component of their identity, as persons and as members of a community. The measure imposed by GS4 restrict their rights and prevent the expression of their identity.  Some religions require a specific dress code, others encourage the public expression of the faith through signs such as garments or objects (medals, crosses, pictures, scapulars, etc.). There are situations where health or security issues associated to a specific job or task might entail a necessary limitation in wearing a certain piece of cloth but a headscarf worn by a receptionist does not interfere with any of her duties. The ban imposed by G4S to wear religious symbols is not a genuine and determining occupational requirement.

States can restrict some specific rights for certain legitimate purposes such as to protect public safety, health or morals. The most common case is the ban in certain places like schools, or in public places, of anything that covers the face. Such a ban is justified because those dresses prevent the identification of those who wear them. A balance must be found between legitimate concerns for security and genuine expressions of religious belonging.

The ban imposed by G4S is aimed at pursuing a policy of neutrality within the company. However, in comparing religion to philosophy or politics it misunderstands its very nature. How many political or philosophical ideologies require a particular dress code to be worn all the time by their followers as a requirement of membership of that community? Is there a particular sign that all members of a political party in Europe are asked to wear?

Obviously, it makes perfect sense to ban, for instance, a “Repeal the 8th“ badge from a workplace but it is for the same reason that it makes sense to ban a t-shirt that says “Repent or you will go to hell!” or “Join Scientology”.  A political badge promotes a specific message that the company might not agree with. The headscarf does not so. The main purpose of wearing a kirpan (turban) for a Sikh or a headscarf for a Muslim woman is not to actively push a message on divisive topics or to promote a political candidate. It is a way to live religious faith, and so it is wearing a little cross for Christians or the kippah for Jews.

G4S’s interpretation of neutrality does not constitute an objective and reasonable justification for imposing on employees a limitation to the expression of their religious identity.

Concerns should be raised also regarding the proportionality of the measure. As the ECJ suggested, if the expression of religious freedom does not match with the requirements necessary for a certain task, rather than being dismissed, the worker should be employed in a different task. A solution should be found that accommodates both the religious expressions of the workers and the general internal rule of a private undertaking.

sabato, marzo 04, 2017

Ireland has a very low abortion rate by European standards

The pro-choice Guttmacher Institute was invited last month to address the Citizens’ Assembly and give delegates some facts and figures about abortion. In my previous blog post, I have showed how it very mistakenly told delegates that married women are more likely to have abortions. In this post I will look at the claim that restrictive abortion laws are associated with higher abortion rates.
This second questionable claim by Gilda Sedgh of the Guttmacher Institute is based on this study. Unfortunately, the study is unreliable for a number of reasons and the authors are fully aware of its limitation: “The availability of abortion data on which to base our estimates was also uneven across regions and time. As for any estimates based on inference, this approach relies on the assumption that abortion rates in country without data are comparable to those in countries with similar characteristic but for which evidence is available.” (p. 266)
Even if we leave aside these limitations, to arrive at the claim that the abortion rate is highest in countries where the abortion law is strictest, you have to compare apples with oranges. That is, you have to compare the abortion rate in developing countries with the rate in developed countries.
For the purposes of the Assembly, Sedgh ought to have separated out the rate for developed and developing countries, otherwise delegates will have been given the impression that Ireland’s strict abortion law is actually backfiring and is producing more abortions than a more permissive regime would. This is absolutely not the case.
If she had looked at rates of abortion in developed countries only, and at some of our closest neighbours at that, delegates would have discovered that the abortion rate in nearby European countries with liberal abortion regimes is much higher than in Ireland, even allowing for the number of Irish women who go to England each year, and even if we allow for a generous estimate of the number of Irish women who might be buying the abortion pill online rather than going to England.
When we compare similar with similar, for instance Ireland with the United Kingdom or other European countries, it is false to say that highly restrictive abortion laws are not associated with lower abortion rates. The 2015 abortion rate (number of abortions per 1000 women ages 15-39) is 4.09 for Ireland, 20.21 for the United Kingdom, 20.79 for France, 25.35 for Sweden.
The percentage of pregnancies that ended in abortion by selected country in 2015 was 5.02 for Ireland, 20.24 for the United Kingdom (2014 figure), 21.22 for France, 24.89 for Sweden.
How can anyone say that “highly restrictive abortion laws are not associated with lower abortion rates”?
The 2015 abortion ratio (number of abortions per 1000 live births) is 52.9 for Ireland, 261.3 for the United Kingdom, 269.3 for France, 331.4 for Sweden.  In other words, in Ireland we have one aborted baby every 19 newborns, while in the UK and France it is one abortion for every four newborns and in Sweden one for every three newborns.
Even if we generously estimate the number of Irish women who buy abortion pills on-line at 1,500 and we add this figure to 3,451 which is the number of Irish residents who had abortions in England and Wales in 2015, we still have an abortion rate of just 5.86 and an abortion ratio of 75.8.
The Netherlands is often held up as an example of a country with a liberal abortion law but a low abortion rate and ratio. However, the abortion percentage and the abortion ratio there are still much higher than for Ireland at 13.67 and 158 respectively.
In spite of what has been presented to the Citizens’ Assembly, in developed countries permissive regimes have high abortion rates.
The low Irish abortion rate is something the Citizens’ Assembly should keep strongly in mind. What happens if the 8th amendment goes?

Here you can find all the statistics:
United Kingdom