Friday, March 17, 2006
Paternal Parental Choice and the ECHR
Check out this post, over at Opinion Juris, about "paternal parental choice" and a recent decision, Evans v. United Kingdom, by the European Court of Human Rights. In particular, the way the ECHR uses the "margin of appreciation" idea to allow for local variation on questions regarding the beginning of life and the protection of unborn children is interesting. Roger Alford asks:
The ECHR's decision in Evans is a significant application of the margin of appreciation doctrine under the European Convention. Can you imagine the possible ramifications for constitutional comparativists in the United States? Would it mean each state should be free to decide when life begins? Would it allow states to grant greater rights to fathers than they currently enjoy on issues involving abortion, embryology, fertilization and birth? If the European Convention gives Member States wide discretion to regulate on such matters, should our constitutional approach implement a similar approach of legislative deference?
I am no fan of constitutional comparativism, but if advocates are going to warmly embrace ECHR decisions in other constitutional contexts (i.e., Lawrence), should they not do so here? As Justice Ginsburg said last year at the ASIL annual meeting we should look abroad for "negative examples" on matters such as abortion. Here is one such example available for comparative reference.
https://mirrorofjustice.blogs.com/mirrorofjustice/2006/03/paternal_parent.html