European Court Of Human Rights Might Pass On Abortion-Rights Case, WSJ Reports

Main Category: Abortion
Also Included In: Women's Health / Gynecology;  Litigation / Medical Malpractice
Article Date: 10 Oct 2008 - 5:00 PDT

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The European Court of Human Rights, which rules on cases in which applicants feel they cannot receive adequate legal redress in their home countries, is considering whether to take up an Irish case that would determine whether a woman in the country has a right to an abortion to preserve her health, the Wall Street Journal reports. According to the Journal, the court for years "has essentially turned a blind eye to Ireland's abortion laws, considered among the most restrictive in Europe," and some observers are concerned that "it may avoid the issue, as it has in the past."

The court, which includes one justice from each of the 47 nations that signed the European Convention of Human Rights, was created to "uphold rights to life, privacy, freedom of speech, religion and the like," the Journal reports. The current case, A.B. and C. v. Ireland, was brought by three Irish women who received abortions in England and experienced medical complications when they returned to Ireland, which has a constitutional ban on abortion stating that the right to life of the fetus is equal to that of the mother. The Irish Supreme Court in 1992 ruled that abortion is legal to save a woman's life, but no laws were made to define when abortion would be considered necessary.

The women argue that they were uncomfortable seeking medical treatment both before and after the procedure because of Ireland's laws, including a 1995 statute that applies criminal penalties to anyone providing information or assistance that promotes abortion. The women also say that Irish laws prohibiting abortion except in cases to save the life of a pregnant woman infringed on their rights to life, privacy and freedom from discrimination.

The Court of Human Rights previously has refused to rule on whether a fetus is protected in cases brought by residents of other countries, and it declined to hear an earlier challenge to Ireland's law. Critics have said the court's avoidance of such issues "helps perpetuate an inequitable patchwork of rules across the region," according to the Journal. Forty-three of the 47 countries governed by the court allow abortion to preserve a woman's health, but the other four have strict abortion bans. Observers have noted that a woman could die from pregnancy-related complications in one country, while another state would have protected her life. In addition, because applicants must exhaust all legal options in their own country before appealing to the European court, "the Catch-22" is "how to exhaust those remedies amid vague or conflicting laws before a dangerous due date arrives -- or it becomes too late to abort," the Journal reports.

Richard Kay of the University of Connecticut School of Law said that the court in a landmark 2004 case noted that there is no European consensus on when life begins. Kay said the consensus is a critical issue for the court because it has no binding authority, member states rarely resist its decisions and enforcement is political rather than legal. Kay added that the court could rule on Irish abortion laws and that even if the government disagreed, it would comply.

Siobhan Mullally, senior lecturer at the University College Cork Faculty of Law, said that by declining to hear certain cases, the court can evade ruling on the most pertinent questions concerning abortion. "So far the court has been very cautious," Mullally said. However, Aurora Plomer, an expert in bioethics at the University of Sheffield School of Law, said the court's charter states that it "is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective" (Park, Wall Street Journal, 10/9).

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