Thursday, February 18, 2010
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.]
https://mirrorofjustice.blogs.com/mirrorofjustice/2010/02/abortion-ireland-and-the-european-court-of-human-rights.html