ABC vs. Ireland: European Court of Human Rights Decides On Abortion Case

December 21, 2010

The European Court of Human Rights (ECtHR) decided on December 16th the case of A.B.C. vs. Ireland [25579/05] in which three unnamed women (A, B and C) claimed a right to abortion under the European Convention on Human Rights (ECHR). The plaintiff’s aim was to show that the ECHR trumps Ireland’s life-protecting constitution, which does not allow abortion unless the life of the mother is at risk.

No “right to abortion”

The good news is that the Court clearly affirms that the ECHR does not contain a “right to abortion”. Paragraph 214 of the Judgment states that “Article 8 [of the Convention] cannot … be interpreted as conferring a right to abortion”. This judgment, which is binding in 47 nations, is a clear pro-life victory and setback for the pro-abortion lobby that wanted the case to become a European version of US Supreme Court’s ‘Roe vs. Wade’ decision.  Article 8 [of the Convention] cannot … be interpreted as conferring a right to abortion.

“Breach of the Irish Constitution” is not based on any facts

While rejecting the complaints of two of the three applicants, the Court did find a violation of Article 8 with regard to applicant C. C argued that she was a victim of a “lack of accessible and effective procedures in Ireland so to allow her to establish qualifications for a lawful abortion in Ireland” (regarding the implementation of Article 40.3.3 of the Irish Constitution). Article 40.3.3 reads: “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.”

The Court interpreted Article 40.3.3 as providing for “lawful abortion in Ireland”. This interpretation is highly regrettable and according to many experts, erroneous.

The Court defends its position in sections 267-268, stating that

…authorities failed to comply with their positive obligation to secure….effective respect for her private life by reason of the absence of any implementing legislative or regulatory regime providing for an accessible and effective procedure by which the third applicant could have established whether she qualified 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 “facts” on which the allegations against Ireland are built consist mainly of subjective emotions, beliefs and sentiments. Applicant C, who was in remission from cancer, claimed that she had feared that the continuation of her pregnancy put her life at risk. This fear was not based on any medical fact and appears to have been unfounded. In any case, if there had been a real risk for her life, the law would not have prevented her from having an abortion. All three complainants claim to have been afraid of seeing a doctor when, having returned from their respective trips to England (where they had the abortions), they suffered from the complications often associated with abortions. Yet again, these fears were completely unfounded. The Irish law does not sanction abortions that have been performed abroad. In a certain sense, thus, what the three applicants tried to hold the Irish ban on abortion responsible for were unfounded and subjective fears. Disturbingly, it is on these subjective feelings of the plaintiff that the Court concluded there was a deficiency of procedure by the Irish government to service her concern, and constituted a breach of Article 8.

Furthermore, it raises some questions why the ECtHR deemed admissible these complaints although the possibility to file the case with the Irish courts has not been exhausted. In fact, no Irish court has heard the three cases, nor has any judge ever ascertained substantiated facts on which the three complaints were based upon.

While the primary assertion of the ECtHR conveys a strong pro-life message, affirming the fact that there is no such thing as a “right to abortion” under the ECHR, and that Member States are the sovereign ruler on legislation regarding abortion- it has created a sad chapter in the ECtHR ruling- declaring a breach of the Irish constitution on the basis of a plaintiff’s merely subjective feelings.