Abortion, Ireland, and the European Court of Human Rights

"A., B. & C. v. Ireland: 'Europe's Roe v. Wade'?" 

Lewis & Clark Law Review, Forthcoming

SHANNON K. CALT, Lewis & Clark Law Review
Email: [email protected]

In Ireland, abortion is illegal. In 2005, three Irish women who had previously traveled to England for abortions brought suit in the European Court of Human Rights asserting that restrictive and unclear Irish laws violate several provisions of the European Convention on Human Rights. The case was heard before the Grand Chamber of the Court on 12/09/2009 and a decision is forthcoming some time in 2010.

The European Court of Human Rights has never determined whether the Convention protects a right to life of the unborn or conversely any right to an abortion.The case at hand squarely presents an opportunity for the Court to take a position.

This comment focuses on Irish and European Court of Human Rights abortion law and the impending decision in A., B. & C. v. Ireland. I conclude that - based upon the Court's own jurisprudence - the European Court of Human Rights is very likely to declare that Ireland's nearly absolute abortion ban and the resultant effects of Irish law did and continue to violate rights the Court has already deemed protected by the European Convention on Human Rights. The Court will likely embrace one of two possible holdings. First, the Court could find that Ireland's abortion ban causes undesirable secondary effects such as inadequate post-abortion care, that these effects implicate rights under the Convention, and that Ireland has an unfulfilled positive obligation to mitigate these effects. Alternatively, I suggest that the Court may hold that Ireland's abortion ban itself violates the personal and family rights of applicants A., B. and C. and women like them. Commentators have referred to this case as “Europe's Roe v. Wade,” and I believe this to be an accurate if oversimplified statement.

[Downloadable here.]