CCPR/C/119/D/2425/2014 4.15 The State party disputes 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 In her comments dated 22 May 2015, the author contests the State party’s portrayal of the Irish people’s views on abortion. For many years, opinion polls have indicated that a significant majority of the Irish people support legalizing access to abortion in cases of nonviable pregnancies and fatal fetal impairments. A similarly high majority support legalizing abortion where the pregnancy results from sexual assault, or where a woman’s health is at risk. The results of the country’s constitutional referenda do not confirm the State party’s description of the Irish people’s profound “moral choice”, because the Irish electorate has never voted on a proposal to increase the number of situations in which access to abortion is legal. Indeed, the Irish people have never had the opportunity to express the view that abortion should be made available to women in circumstances other than where there is a risk to a woman’s life. In fact, voters rejected two proposals that would have made abortion illegal where a woman is at risk of suicide. Furthermore, in the three constitutional referenda on abortion, the percentage of the eligible electorate voting in favour of restrictions was less than 35 per cent. 5.2 The Protection of Life During Pregnancy Act 2013 is irrelevant to the author’s complaint, since it merely regulates procedures to be followed when a woman who faces a real and substantial risk to her life seeks an abortion. Claims under article 7 5.3 Because the prohibition of cruel, inhuman or degrading treatment or punishment is absolute, no derogations are permitted, and a State party may not seek to justify its conduct by balancing an individual’s rights under article 7 with the “rights of others”. The notion of a margin of appreciation, which the Committee has explicitly rejected, is irrelevant in an appraisal of article 7 protections. 14 Also irrelevant is whether the State party’s conduct caused ill-treatment through arbitrary action. Rather, the determinative issue under article 7 is whether harm suffered amounted to ill-treatment and whether the conduct from which the harm resulted was attributable to the state. 5.4 The State party suggests that because the abortion the author sought was illegal under domestic law, the State party’s denial of this procedure cannot be considered to amount to ill-treatment. However, because the protections under article 7 are absolute, domestic law may never be invoked to justify a failure to discharge obligations under the Covenant. When the author was denied an abortion, her suffering was aggravated, not alleviated, by the knowledge that abortion is a crime in Ireland. 5.5 Omissions may constitute ill-treatment, and the public employees who provided the author’s medical care omitted to administer the abortion she sought. Because she was denied an abortion by State agents acting in accordance with State laws and policies, the author endured severe pain and suffering reaching the threshold required by article 7. Although some health-care professionals were kind to her, on the whole she felt abandoned and ostracized by the Irish health-care system. Claims under article 17 5.6 By denying the author access to an abortion procedure, the State party arbitrarily interfered with her right to privacy in a manner that is not permissible under the Covenant for the following reasons: (a) By criminalizing and prohibiting abortion, the State party discriminated against the author because she is a woman, thereby contravening the prohibition of discrimination on the basis of sex enshrined in articles 2 and 3 of the Covenant; 14 10 The author cites general comment No. 34 (2011) on the freedoms of opinion and expression, para. 36. GE.17-10463