CCPR/C/116/D/2324/2013 4.15 The State party disputes the claim that its laws stereotyped the author as a reproductive instrument, subjecting her to gender discrimination. Rather, the inherent differentiation between a man and a pregnant woman requires the careful balancing of rights of the fetus, which is capable of being born alive, and the rights of the woman. Author’s comments on the State party’s observations 5.1 The author submitted comments on the State party’s observations on 12 December 2014. She contests the State party’s portrayal of the Irish people’s view on abortion and their “choice” as to when it should be available in Ireland. For many years, opinion polls have indicated that a significant majority of the Irish people support legalizing access to abortion in cases of non-viable pregnancies and fatal fetal impairments. A similarly large majority support legalizing abortion when the pregnancy results from sexual assault or a woman’s health is at risk. Moreover, the constitutional referendums do not support the State party’s description of the Irish people’s profound “moral choice”. The Irish electorate has never been provided with an opportunity to vote on a proposal to expand the situations in which access to abortion is legal. At no time have the Irish people been provided with the opportunity to express their view that abortion should be made available to women in circumstances other than when there is a risk to a woman’s life. In fact, two proposals put to the electorate in 1992 and 2002, which would have further restricted access to abortion by making abortion illegal where a woman is at risk of suicide, were rejected. Furthermore, in the three constitutional referendums on the matter of abortion, less than 35 per cent of the eligible electorate voted in favour of restrictions. 5.2 The Protection of Life During Pregnancy Act 2013 has no bearing on the author’s complaint, as it applies only to the regulation of procedures to be followed when an abortion is sought by a woman in a situation where there is a real and substantial risk to her life. Claims under article 7 5.3 As a result of the absolute nature of the right enshrined in article 7, a State party may not seek to justify its conduct with reference to a need to balance the rights protected under it with the “rights of others”. Furthermore, requiring arbitrary action by State agents as a constituent element of ill-treatment has no basis in the wording of article 7. Whether the State party’s conduct caused ill-treatment through arbitrary action or not is irrelevant to the protection afforded by article 7. When a claim is made that article 7 has been violated, the matter for enquiry is whether the harm suffered amounted to ill-treatment and whether the conduct from which the harm resulted was attributable to the State. Whether or not the conduct was arbitrary is immaterial. 5.4 By extension of its assertions regarding “arbitrary action”, the State party implies that the domestic illegality of the abortion sought by the author is determinative and reason in and of itself for the dismissal of her claims under article 7. It suggests that because the abortion sought was illegal under domestic law, the State party’s denial of the medical procedure could not be considered to amount to ill-treatment. That reasoning undermines the principle that domestic law may never be invoked to justify a failure to discharge obligations under the Covenant and contradicts the absolute nature of the protection afforded by article 7. To accept it would be to tacitly accept the assertion that by criminalizing or legally prohibiting certain medical procedures, a State may avoid responsibility under article 7, even where withholding such procedures causes individuals severe pain and suffering. When the author was denied an abortion, her suffering was made no more tolerable to her for the knowledge that the denial conformed with domestic law. In fact, the criminalization of abortion increased, rather than diminished, her suffering. 12