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"The protection accorded under Irish law to the right to life of the unborn was based on profound moral values deeply embedded in the fabric of society in Ireland and the legal position was defined through equally intense debate."

Wrote the European Court of Human Rights in Case of A, B, and C v. Ireland, which Linda Greenhouse discusses in the NYT:

No right under the [European] Convention was violated [where the plaintiffs were able to travel to another country to obtain an abortion], the court said by a vote of 11 to 6. Granted, ?the process of traveling abroad for an abortion was psychologically and physically arduous? for these women. And granted also that in their particular circumstances, they could have obtained legal abortions in 35 to 40 other countries covered by the Convention. But because Ireland?s law is based ?on the profound moral views of the Irish people as to the nature of life,? the court said, Ireland was entitled to an extra ?margin of appreciation.? This phrase expresses a measure of deference toward a country?s right within the framework of international law to chart its own domestic course. With its extra margin, Irish law prevailed.

Greenhouse notes that the European Court accepted a situation similar to what would come into being if the United States Supreme Court withdrew the constitutional right to abortion and the matter were left to state law. She says the case gave her "the eerie feeling that I was peering into a domestic future."

Obviously, not all states would choose to join the anti-abortion bandwagon, even if they had the Supreme Court?s permission. California, New York, the District of Columbia, Connecticut and Massachusetts (once two of the most anti-abortion states, but times change) would remain places of refuge for desperate women, Englands to the Irelands that are Wyoming (which has no abortion provider), the Dakotas, or the Deep South, where a shrinking handful of doctors provide abortions in a hostile regulatory climate. More than a third of all women live in counties without an abortion provider, and that number is growing. Long-distance travel is made more onerous in the half of the states that require 24-hour waiting periods after ?counseling,? necessitating two trips or an overnight stay.

The second commenter over there brings up Justice Kennedy's interest in referring to international law:

The right has roundly criticized Justice Kennedy for his interest in international law. Whaddaya bet they won't criticize him for citing the case of A, B & C v. Ireland? Watch the Court chip, chip, chip away at Roe & at Planned Parenthood v. Casey.

Well, what about the left? What about those who approve of the use of the decisions from foreign court in the analysis of American constitutional law? Whaddaya bet they won't want to have to pay any attention to "the right to life of the unborn... based on profound moral values deeply embedded in the fabric of society"?

Full post as published by Althouse on December 31, 2010 (boomark / email).