This decision, when handed down, should generate a storm of controversy ...

... and be the occasion for some thoughtful, probing commentary:

"A., B. & C. v. Ireland: 'Europe's Roe v. Wade'?" 

Lewis & Clark Law Review, Forthcoming

SHANNON K. CALT, Lewis & Clark Law Review
Email: v8engin@hotmail.com

In Ireland, abortion is illegal. In 2005, three Irish women who had previously traveled to England for abortions brought suit in the European Court of Human Rights asserting that restrictive and unclear Irish laws violate several provisions of the European Convention on Human Rights. The case was heard before the Grand Chamber of the Court on 12/09/2009 and a decision is forthcoming some time in 2010.

The European Court of Human Rights has never determined whether the Convention protects a right to life of the unborn or conversely any right to an abortion.The case at hand squarely presents an opportunity for the Court to take a position.

This comment focuses on Irish and European Court of Human Rights abortion law and the impending decision in A., B. & C. v. Ireland. I conclude that - based upon the Court's own jurisprudence - the European Court of Human Rights is very likely to declare that Ireland's nearly absolute abortion ban and the resultant effects of Irish law did and continue to violate rights the Court has already deemed protected by the European Convention on Human Rights. The Court will likely embrace one of two possible holdings. First, the Court could find that Ireland's abortion ban causes undesirable secondary effects such as inadequate post-abortion care, that these effects implicate rights under the Convention, and that Ireland has an unfulfilled positive obligation to mitigate these effects. Alternatively, I suggest that the Court may hold that Ireland's abortion ban itself violates the personal and family rights of applicants A., B. and C. and women like them. Commentators have referred to this case as “Europe's Roe v. Wade,” and I believe this to be an accurate if oversimplified statement. 

[Downloadable here.]

Comments

[Robert Hockett]

Many thanks for this, Michael -- very interesting indeed. I wonder whether there have been arguments here that are analogues to those made even by some pro-choicers in the US that it is prudent to leave the question to state legislatures? One could imagine that such arguments might get even more traction in Europe than they did among self-described 'federalists' in the US.

All best,
Bob

[Robert Hockett]

Very interesting indeed, Michael -- many thanks. I wonder, have there been any arguments in this case analogous to those made here in the US, even by pro-choicers, to the effect that prudence might counsel leaving this fraught question to state legislatures? One could imagine Euro-'federalists' advancing such arguments with at least as much zeal as some of their American counterparts.

Thanks again,
Bob

[Michael Perry]

Bob, my impeccable Irish sources tell me that it would be *very* surprising if the ECtHR went further than to tell Ireland that it must accomodate women who want to terminate pregnancies that are life-
or health-threatening. Margin of appreciation and all that.I eagerly await the opinion(s).

[Steve Shiffrin]

Michael, very interesting. Any clue whether health threatening would include mental health? And my impression is that legislation distinguishing between stages of pregnancy (permissive in early stages, but stricter in later stages) is common in Europe (at least on the books - not sure enforcement is strict. Is it likely this could influence the latitude of the margin of appreciation?

[Michael Perry]

Steve, my source, who is also a dear friend--Gerry Whyte, former dean and present professor at Trinity College Dublin Law School--tells me that a health-threatening pregnancy may well include, in the
eventual judgment of the ECtHR, a pregnancy that leaves the woman suicidal. There is a famous Irish abortion case involving a young woman who was suicidal in consequence of her pregnancy. I cant recall the details of the case.