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European Court Finds Problem With Ireland's Abortion Law Implementation

By Howard M. Friedman

Yesterday in Case of A, B and C v. Ireland, (ECHR, Dec. 16, 2010), the Grand Chamber of the European Court of Human Rights dealt with challenges by three Irish women to Ireland's ban on abortions. The country's Constitution bans abortion. It however allows women to travel abroad for an abortion and allows abortions in Ireland where the mother's life (but not merely her health) is threatened. The Court found that the failure of the Irish parliament to implement the provisions on protection of a mother's life violates the European Convention on Human Rights. As summarized in the court's Press Release on the case:

Having regard to the first and second applicants? right to travel abroad to obtain an abortion and to appropriate pre- and post-abortion medical care in Ireland, as well as to the fact that the impugned prohibition in Ireland on abortion for health or well-being reasons was based on the profound moral values of the Irish people in respect of the right to life of the unborn, the Court concluded that, the existing prohibition on abortion in Ireland struck a fair balance between the right of the first and second applicants to respect of their private lives and the rights invoked on behalf of the unborn.

However the Court found a violation of Article 8 of the European Convention on Human Rights as to the third woman. Again from the Court's Press Release:

[T]he third applicant had a rare form of cancer and she feared it might relapse as a result of her being pregnant. The Court considered that the establishment of any such risk to her life clearly concerned fundamental values and essential aspects of her right to respect for her private life.

It went on to find that the only non-judicial means for determining such a risk on which the Government relied, the ordinary medical consultation between a woman and her doctor, was ineffective. The uncertainty surrounding such a process was such that it was evident that the criminal provisions of the 1861 Act constituted a significant chilling factor for women and doctors as they both ran a risk of a serious criminal conviction and imprisonment if an initial doctor?s opinion that abortion was an option as it posed a risk to the woman?s health was later found to be against the Irish Constitution.

Neither did the Court consider recourse by the third applicant to the courts (in particular, the constitutional courts) to be effective, as the constitutional courts were not appropriate for the primary determination of whether a woman qualified for a lawful abortion.... Consequently, the Court concluded that Ireland had breached the third applicant?s right to respect for her private life given the failure to implement the existing Constitutional right to a lawful abortion in Ireland. Accordingly, there had been a violation of Article 8.

Six dissenting judges would have found that the rights of all three women were infringed.  The Guardian reports on the decision.

Full post as published by Religion Clause on December 17, 2010 (boomark / email).