European Court Decision on Ireland Abortion Ban Could Have International Impact
by John Smeaton
November 21, 2008
LifeNews.com Note: John Smeaton is the national director of the Society for the Protection of Human Life, a British pro-life organization.
The pro-abortion lobby is determined to overturn Ireland’s constitutional ban on abortion in a case before the European Court of Human Rights which will have worldwide implications, including in the US, according to American legal experts.
The Society for the Protection of Unborn Children has joined other international pro-life organizations in filing on Friday a joint brief to defend Ireland’s historic protection of the unborn.
Let me explain the background to this case.
Five years ago a confidential memorandum prepared by the Center for Reproductive Rights (CRR), a New York based group of pro-abortion lawyers, was uncovered by the pro-life lobby in the US. The memorandum outlined a detailed strategy to establish an internationally recognized human right to abortion.
Key to this strategy was the distortion of existing human rights treaties in cases before international courts and in particular before the European Court of Human Rights in Strasbourg.
In 2007 the CRR intervened in the case of Tysiac v Poland.
This case involving a young woman who complained that her human rights were violated when she was refused an abortion. Despite its previous reluctance to become involved in the abortion laws of member states within the Council of Europe, the court ruled that the Polish law (which only permitted abortion on grounds of a serious risk to the mother’s health, in cases of rape or foetal disability) breached the European Convention on Human Rights.
Now the CRR is hoping that next year the Court will overturn Ireland’s constitutional ban on abortion when it hears the case of three women, known only as A,B and C.
Although there are several important differences between the two cases, the decision in the Polish case has set a dangerous precedent and there can be no guarantee of what the Court will decide.
In support of the three women, the Irish Family Planning Association (IFPA) claims that by forbidding abortion in Ireland, the constitution violates the rights to life and to privacy, it discriminates against women and subjects them to inhuman and degrading treatment by forcing them to seek abortions abroad.
Leaving aside the fact that any case may be considered inadmissible if it hasn’t been heard by the domestic courts, the IFPA’s claims are not only unfounded, they are an attempt to pervert everything the European Convention originally set out to protect.
No treaty or convention has ever recognized access to abortion as a human right. Article 2 of the European Convention protects the right to life and while it does not specifically prohibit abortion, it would be turning the convention on its head to argue that it provides a right to kill through abortion. In fact the European Convention only sets a minimal level for human rights.
By specifically recognizing the right to life of the unborn the Irish Constitution goes beyond the basic protection provided by Article 2. And according to Article 53 nothing within the Convention can be used to diminish the recognition of a human right in domestic law set at a higher standard than that stipulated in the Convention.
Nor can Article 3, which protects against torture and inhuman and degrading treatment be interpreted as providing a right to abortion. Even if this article was applicable to abortion law, having to travel abroad for an abortion would fail to meet the level of seriousness necessary to be considered as a breach of Article 3 rights.
The abortion lobby has for a long time argued that abortion must be legalized to ensure the equality of women.
Article 14 of the Convention protects from discrimination but again this is not applicable to the issue of abortion. This article only complements the rights protected by the rest of the Convention and only prohibits unfair, unlawful or arbitrary discrimination.
The European Convention has never sought to eliminate the natural differences between men and women including their physical and reproductive differences. Every abortion discriminates against an unborn human being, so again pro-abortionists are attempting to distort the right they pretend to uphold.
It is, however, the right to privacy, protected by Article 8, where the abortion lobby has been most successful in the past.
Notoriously it was the right to privacy which the US Supreme Court used in Roe v Wade as a pretext to legalize abortion in 1973.
Until recently the European Court argued that the survival of an unborn child was not simply a private matter for a pregnant woman. It acknowledged that each country had a right to decide the level of protection provided for children before birth. If the Court decides that Ireland’s constitutional ban on abortion violates the European Convention then it will effectively say that a right for a woman to decide privately to end the life of her unborn child is of more fundamental importance than the child’s right to life.
In his dissenting opinion in the Tysiac case Judge Francisco Javier Borrego said: "Today the Court has decided that a human being was born as a result of a violation of the European Convention on Human Rights. According to this reasoning, there is a Polish child, currently six years old, whose right to be born contradicts the Convention. I would never have thought that the Convention would go so far, and I find it frightening."
If the European Court declares Ireland’s protection for unborn children violates the European Convention it will have implications for the whole world which will be very frightening indeed.
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