European Court of Human Rights Ruling on Abortion in Ireland is a Big Disappointment

The Grand Chamber of the European Court of Human Rights has issued its long-awaiting ruling on three Irish abortion cases, known as A, B & C v. Ireland. Essentially, the judgment upholds the existing Irish legislation dealing with abortion, which is among the strictest in the world. Not only is abortion forbidden by legislation in Ireland, the matter is also subject to a constitutional prohibition. There is only one exception: when the woman’s life is at stake.

In two of the cases before the Court, A and B, there was no issue of the woman’s life being threatened. These were sad cases of poorly-informed women who went abroad to have abortions and then suffered terrible medical and personal difficulties upon their return to Ireland. They are typical of much of the terrible hardship that Irish women undergo in order to obtain abortion. The Court dismissed the claims of A and B. Six of the seventeen judges disagreed, writing a dissent that held Irish law to be too restrictive and a violation of the rights of A and B under the circumstances. In particular, the dissenters concluded there was a European consensus favouring broader access to abortion, and that this should guide the Court in its assessment.

The third case, C, involved a threat to the life of the woman. The Court concluded that there had been a violation of her right to privacy, protected by article 8 of the Convention, because the Irish regulatory framework did not adequately address her situation and provide her with mechanisms in which to exercise her rights effectively. In other words, the Court said that Ireland did not even respect its own laws, and did not adequately provide for the situation where a woman’s life is in danger. It wrote: ‘the authorities failed to comply with their positive obligation to secure to the third applicant effective respect for her private life by reason of the absence of any implementing legislative or regulatory regime providing an accessible and effective procedure by which the third applicant could have established whether she qualified for a lawful abortion in Ireland’ (para. 267).

This is a ‘victory’ for C, and it will no doubt improve the situation for a tiny sub-set of Irish women – those whose lives are threatened by a pregnancy and who fit within the narrow exception to the prohibition – but it barely makes a dent in the real problem. Supporters of ‘choice’ have been putting a brave face on it. The Irish Family Planning Association hailed the decision as a ‘landmark’, and Human Rights Watch praised it as well. I’m not nearly as enthusiastic. I think the judgment is a huge disappointment.

Essentially, the Court said the issue of abortion remains within Ireland’s margin of appreciation. This is an unwritten limitation that the Court has read into the European Convention, and the concept is well anchored within its jurisprudence. When there is insufficient consensus on a particular issue within the member states of the Council of Europe, the Court will decline to find a violation even where in an objective sense the rights of the applicant may have been breached. It is always a source of great frustration to applicants, and those who see the Court as an instrument of social change. But it is also a wise concept and certainly has its place in the Court's analysis, provided that it does not give any particular state an effective veto on the rights of individuals that are protected at the international level.

In this case, the Court conceded that ‘there is indeed a consensus amongst a substantial majority of the Contracting States of the Council of Europe towards allowing abortion on broader grounds than accorded under Irish law‘ (para. 235). But the Court said this was not enough. The Court noted that Irish law does not prohibit women travelling abroad for abortion, and considered this to be relevant in assessing the scope of the prohibition. It also invoked ‘the profound moral views of the Irish people as to the nature of life’ (para. 241). It acknowledged that the situation was ‘psychologically and physically arduous’ for A and B, but insufficient to constitute a violation of their rights under the Convention.

The Court referred to the referendum on the Lisbon treaty as evidence of the popular support for the prohibition of abortion within Ireland. Of course, the Lisbon treaty had nothing whatsoever to do with abortion. However, the Irish Government submitted a study that referred to concerns about abortion as being one factor that may have influenced Irish people to vote against the treaty, by a slight majority (para. 225). On this, I think the Court is overstating the significance of the Lisbon treaty referendum. I recall posters in Galway saying ‘stop stag hunting, vote no to Lisbon’. There were reports of people who were afraid that Lisbon would result in the return of capital punishment, or who were concerned that their sons (and daughters) would be sent to join the EU army in Iraq. The Court shouldn’t have made so much of the first Lisbon referendum, which was an embarrassing manifestation of irrationality and ignorance in the Irish electorate.

Rather, it might have attached real importance to the fact that Irish women obtain abortions in large numbers. They are forced to do this outside the country. But they do it nevertheless. Often, they do it with the knowledge, sympathy and financial support of friends and family, and in this way the practice is condoned by large numbers of people. In other words, abortion is widely accepted in Ireland as a matter of fact. It is appalling that women continue to suffer, as did A and B, because of this hypocritical situation whereby the State turns a blind eye to a widespread practice. Ireland does this largely out of deference to the views of a church that attaches great importance to the rights of unborn children, but that has a disgraceful record in the treatment of children after they are born, as recent inquiries have shown.

Ireland's abortion legislation amounts to discrimination against women and it is a pity that the European Court of Human Rights could not do a better job of addressing this.