It Could Have Been Much Worse: The European Court of Human Rights and Irish Law Restricting Abortion

Yesterday the European Court of Human Rights issued its decision in A, B, and C vs. Ireland, a case in which three women challenged the Republic of Ireland’s law restricting abortion.  (See here).  The court ruled in favor of the third woman, C, but against the other two applicants.

The court found that Ireland had failed to provide an adequate procedure for the exercise of her qualified “right” to abortion under Irish law where the pregnancy presents “a real and substantial risk to the life, as distinct from the health, of the mother.”  The court did not rule in favor of the other applicants who sought abortions for purely elective reasons or for reasons more generally related to “health.”  (For the full text of the court’s opinion see the court’s website here and the opinion in PDF form here).

Indeed, the good news, as William Saunders notes (here) is that the court ruled that “there was no right to abortion under the [European Convention on Human Rights] which is binding on 47 nations.”  This, Saunders further notes “shouldn’t be surprising – the convention never mentions the word ‘abortion.’”  Still, Saunders finds the decision troubling “[w]hen one considers that was no imminent or proven . . . risk of death in this case (only a fear by one of the plaintiffs that her pregnancy could trigger a recurrence of a cancer that might prove fatal), [nor] any directive from the Irish government to doctors to begin ‘prescribing abortion’ in such cases.” 

Even more troubling is the fact that six of the seventeen judges on the court would have ruled in favor of all three applicants.  These judges criticized the deference shown to “the profound moral views of the Irish people” as a “real and dangerous new departure in the Court’s case-law.”  Instead these judges would have found a European consensus that would mandate the availability of abortion on demand.

So, for the moment, Ireland’s principled constitutional guarantee of “the right to life of the unborn . . . with due regard to the equal right to life of the mother” remains intact, if not unchallenged.  Still, to paraphrase Harry Blackmun from Webster, “a chill wind blows” from the Continent.