... 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.]
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
Posted by: Robert Hockett | 02/18/2010 at 10:55 AM
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
Posted by: Robert Hockett | 02/18/2010 at 10:58 AM
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).
Posted by: Michael Perry | 02/18/2010 at 11:06 AM
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?
Posted by: Steve Shiffrin | 02/18/2010 at 12:25 PM
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.
Posted by: Michael Perry | 02/18/2010 at 03:07 PM