Could Irish abortion case lead to a “European Roe v. Wade”?

December 10, 2009
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European Court of Human Rights,30 Jan 2009/Vincent Kessler

Ireland has defended its strict law against abortion at the European Court of Human Rights (ECHR) in Strasbourg in a case that could overturn that ban if the judges agree with three women who said it endangered their health and violated their rights.  The women, two Irish and one Lithuanian living in Ireland, had travelled to Britain to have abortions because traditionally Catholic Ireland allows the procedure only when the mother’s life is in danger. Read our full story on Wednesday’s hearing here.

The three women, named only as A, B and C, argued they had to terminate their pregnancies due to medical and social problems, and that being forced to travel abroad for abortions meant submitting to inhumane treatment that violated their right to privacy. They also said the law constituted gender-based discrimination.

This has been described as “Europe’s Roe v. Wade case” (here and here) because a Court ruling would be an authoritative interpretation of the European Convention on Human Rights to which 47 European states are parties and with which they must comply.  “Domestic courts have to apply the Convention,” the ECHR’s FAQ says. “Otherwise, the European Court of Human Rights would find against the State in the event of complaints by individuals about failure to protect their rights.”

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Pro and anti-abortion posters in Dublin for 2002 referendum, 2 March 2002/Paul McErlane

But things are never simple in Europe. If the Court rules that the Irish abortion law violates the Convention, it can order Dublin to pay compensation to those women within three months. But the question of changing national legislation would be transferred to the Committee of Ministers of the Council of Europe, which could make it a political football. The Court sometimes mentions the need to change national legislation in its final decision. If it does, there would be pressure on Dublin to legalise abortion. If not, it’s anybody’s guess what happens next.

As for the effect on other European countries, a ruling against Ireland would apply only to Ireland. It would become part of the ECHR’s case law and could be applied to other countries if someone from another country files a similar case and the Court finds a similar violation of rights. But the Court would treat any new case on its merits, which means it might not necessarily rule the same way as in the Irish case.

In practical terms, if any such cases did come in the wake of a ruling against Ireland, they would probably only come from Poland or Malta. And they could take years before reaching Strasbourg, because they would have to go through the national courts first. In the rest of Europe, national laws already allow the abortions these women said they could not get in Ireland. So the term “Europe’s Roe v. Wade case” is an oversimplification of this issue. The ECHR is not the U.S. Supreme Court.

That said, the decision will still be a landmark event because it could set a precedent on whether access to abortion is a basic human right in Europe. The Court indicated its importance by hearing the case before its 17-judge Grand Chamber, headed by the ECHR President Jean-Paul Costa of France. The ECHR usually hears cases in one of its five  “chambers” but passes them to the Grand Chamber “if the case raises a serious question affecting the interpretation of the Convention or if there is a risk of inconsistency with a previous judgment of the Court.”

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ECHR President Jean-Paul Costa opens the 2009 judicial year, 30 Jan 2009/Vincent Kessler

The Irish government’s attorney general, Paul Gallagher, delivered a strong defence of Irish law. He also rebutted in detail the applicants’ arguments that they had to go to Britain for “clandestine” abortions rather than ask an Irish court to let them end their pregnancies under a local law allowing abortions if a mother’s health is gravely threatened.  Arguing for the applicants, Julie F. Kay said it would have been “futile and costly” to pursue the cases in Ireland. I’m no lawyer, but the government’s argument that the applicants did not pursue all legal options in Ireland seemed to make a strong case against them. Whether such a decision would set a precedent would probably depend on how it is worded.

But that’s getting ahead of the story. You can read the details of the case and watch the video of the court session to see for yourself what the arguments are and how the session went. We’ll have to wait a few months for the decision.

The Irish Family Planning Association has estimated that 6,000 Irish women travel every year to Britain, which has less strict laws, to have abortions. The UK Department of Health says 4,600 women gave Irish addresses when applying for abortions there. Several hundred apparently go to the Netherlands and others may not give their real addresses.

What do you think? Should a court in Strasbourg decide whether abortion should be legal in Ireland?

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2 comments

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Yes, I do think the court in Strasbourg should get involved in this. Abortion is a female issue: women should have a right a choose whether to continue a pregnancy, not a legal system. In my opinion Ireland should update their laws to reflect the changes in society and come out of the dark ages.

Posted by kh1 | Report as abusive

The Irish people were promised and guaranteed that their stance as democratically voted for by the Irish people to protect the right to life of the unborn child would be upheld by the Council of Ministers in return for endorsing the Lisbon Treaty. Are the EU going to already break their promises? next our other guarantee of Neutrality will be reneaged upon. So the Word of the Council of Ministers will be worth NOTHING- and the Irish People’s rejection of the Treaty first time around will be properly founded. If this goes ahead is this the rolling out of the Facist Dictatorship of the Eu Elite

Posted by irishcitizen | Report as abusive