Abortion, Ireland, and the European Court of Human Rights

This week, the European Court of Human Rights decided Case of A, B and C v. Ireland, addressing the question whether Irish law regarding abortion, among the most restrictive in Europe, is consistent with the European Convention for the Protection of Human Rights and Fundamental Freedoms.  The ECHR’s decision is available here.

Article 40.3 of the Irish Constitution states:

1^o  The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2^o  The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

3^o  The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

This subsection shall not limit freedom to travel between the State and another state.

This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.

As interpreted by the Irish Supreme Court, Article 40.3.3 entitles a woman to terminate a pre-viability pregnancy if, and only if, the pregnancy poses a serious and grave threat to her life, which threat cannot otherwise be removed.

Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms states:

Article 8 – Right to respect for private and family life

1.   Everyone has the right to respect for his private and family life, his home and his correspondence.

2.   There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The seventeen ECHR judges who decided the case were unanimous in ruling that “the [Irish] authorities had failed to comply with their positive obligation [under Article 8] to secure . . . [the] effective respect for [one’s] private life [guaranteed by Article 8] by reason of the absence of any implementing legislation or regulatory regime providing an accessible and effective procedure by which [a woman can establish] whether she qualifie[s] for a lawful abortion in Ireland in accordance with Article 40.3.3 of the Constitution.  Accordingly, the Court finds that there has been a violation of Article 8 of the Convention.”

However, the seventeen judges were divided on a different issue:

A majority of the Court—nine judges—ruled that Ireland’s refusal to allow women to terminate their pre-viability pregnancies in order to protect their “health or well-being” did not violate Article 8 of the European Convention, given that Ireland allowed women wanting to terminate their pregnancies for health or well-being reasons to travel abroad to do so and also allowed access to information about abortion services abroad to be freely communicated in Ireland.  Two judges concurred in the judgment of the Court, stating that although Ireland, by refusing to allow women to terminate their pregnancies for health or well-being reasons, had not violated Article 8 in the particular circumstances of the case at hand, “it cannot be excluded that in other cases, in which there are grave dangers to the health or well-being of the woman wishing to have an abortion, the State’s prohibition on abortion could . . . result in a violation of Article 8 of the Convention, since [Article 8] protects the right to personal autonomy as well as to physical and psychological integrity.”  Six judges dissented, stating that Ireland’s refusal to allow abortions for health or well-being reasons violated Article 8.

If you read the opinions in Case of A, B and C v. Ireland—a lengthy read, but well worth it—ask yourself with whom would you have sided on the second of the two issues:  the nine judges in the majority, the two concurring judges, or the six dissenting judges.

No one would suggest that Ireland, which can criminally ban—and, therefore, criminally punish—anyone’s paying children for sex while in the territory of Ireland, can also criminally ban its nationals’ and residents’ paying children for sex while in the territory of a country where such activity is not criminal. Similarly, no one would suggest that Ireland, which can criminally ban anyone’s engaging in infanticide while in the territory of Ireland, can also criminally ban its nationals’ and residents’ engaging in infanticide while in the territory of a country where infanticide is not criminal.  Does it make sense to suggest, as the ECHR does, that although Ireland may criminally ban anyone’s having or participating in an abortion for health or well-being reasons while in the territory of Ireland, it may not criminally ban its nationals’ and residents’ having or participating in such an abortion while in the territory of a country, such as England, where such an abortion is not criminal?  What warrants—does Article 8 warrant—the ECHR’s saying, in effect, that Ireland may not criminally ban anyone’s having an abortion for health or well-being reasons while in the territory of Ireland unless Ireland allows its nationals and residents to go next door (i.e., across the Irish Sea), to England, to have such an abortion?  If Ireland may not, consistently with Article 8, ban its nationals and residents from having an abortion for health or well-being reasons while abroad, why doesn’t Article 8 also prevent Ireland from banning its nationals and residents from having such an abortion while at home in Ireland?  Is the majority in Case of A, B and C v. Ireland trying to be Solomonic?  If so, is that an understandable ambition in the complicated context of the case?  One has to read the case, of course, to appreciate just how complicated the context is.