Court Decides Roe v. Wade of Europe Abortion Case Thursday

International   Bill Saunders   Dec 15, 2010   |   7:11PM    Dublin, Ireland

Tomorrow, the European Court of Human Rights (ECHR) is expected to announce its ruling in the case ABC v. Ireland. 

The plaintiffs, three anonymous women A., B., and C., are asking that the Court create a right to abortion in the European Convention on Human Rights (the Convention) to trump the right to life Ireland guarantees the unborn in its Constitution.  It seems ironic that the Convention designed to protect against injustice may be used to stomp out a nation’s right to legally protect its smallest and most vulnerable members. 

When the Convention entered into force in 1953, memories of a Nazi regime that considered human beings non-persons because of race, religion, disability, or other traits were fresh on the minds of the signing nations.  While today’s college seniors were not even alive to hear President Reagan’s command to “Tear Down that Wall” there has been no shortage of human rights violations for them to witness.  Abortion has been one assault against human beings of massive proportions.  Its attack has spread worldwide. 

However, Ireland has chosen to protect the right to life of the unborn members of its state.  In 1983, recognizing the agenda of abortion advocates included distorting constitutions and asking courts to create “rights” to abortion, the people of Ireland voted to make that implicit guarantee explicit, leaving no room for supposed penumbras and emanations to mean otherwise.  (Irish case law before 1983 held that the Constitution’s right to life implicitly protected the unborn.)

Article 40.3.3 of Ireland’s Constitution recognizes the the unborn as equal lives to those of women.  The right to life for the unborn does not exist because there is a prohibition on abortion.   Rather, Ireland prohibits abortion because the unborn have a right to life.

Supra-European courts, at least until very recently, have considered abortion a national issue, giving large deference to individual member states regarding its regulation. In line with this philosophy, they have not recognized the right of a woman to obtain an abortion, nor have they recognized a right to life of the unborn child.  The Court has held the right to life of the unborn, and the corollary regulation of abortion, fall in the margin of appreciation left to the Member States.

A 2007 case, Tysiac v. Poland, has indicated a willingness of the Court to abandon settled jurisprudence when abortion is involved.  Though, notably, the Court in Tysiac stopped short of creating a right to abortion in the Convention. 

The fact that the Court has even entertained arguments in the case of ABC v. Ireland is troubling.  The case does not meet the basic conditions of admissibility and should have been dismissed by a Committee finding that the application is not admissible.

Cases can only be brought to the Court after domestic remedies have been exhausted.  It is not that individuals complaining of violations of their rights can take their case first to their nation’s court, but Article 35 §1 requires that they must first take their case through the courts of the country concerned, up to the highest possible level of jurisdiction.  This respects the sovereignty of nations, and gives the State the first opportunity to provide redress for the alleged violation at national level.  In ABC v. Ireland, there is no judgment of the Irish Courts for the ECHR to review because the applicants never even sought such redress.

A 2006 case D. v. Ireland provides precedence on point.  The case involved an Irish woman who traveled to Britain in order to legally abort. The Court declared that case inadmissible “on the ground that the applicant had not exhausted domestic remedies, in that she failed to bring an action before the Irish courts.” 

The astonishing nature of the ABC case is compounded when one considers that the case, in another extraordinary move, has been referred to the Grand Chamber before a lower court has issued a ruling.   Judgment by the Grand Chamber is final and cannot be appealed against. 

As Ireland’s counsel noted during oral arguments, “no doubt that this application is a significant case… but also for the Court’s relationship with contracting states, their judicial processes and the principle of subsidiarity. … Rarely, if ever, [has the Court been asked to address] such important issues on such inadequate factual basis.”

There has been a trend in Europe for nations to liberalize their abortion laws, making them more permissive.  However, the change in European law has come through the legislature, not the courts.  In contrast to the United States, abortion in Europe has remained an issue of political debate and compromise.  That may change with the decision in ABC v. Ireland. 

We hope, however, that the case will be dismissed for failure to exhaust local remedies.