Ireland Challenged on Abortion Law — in European Court
BY GARETH PEOPLES
February 28-March 13, 2010 Issue | Posted 2/22/10 at 2:00 AM
STRASBOURG, France — In a case that is being referred to as “Europe’s Roe v. Wade,” three women have taken the Irish government to a European Union court in an attempt to change the nation’s abortion law.
The women, known only as A, B and C, have petitioned the European Court of Human Rights, sitting in Strasbourg, France, to create a “right to abortion” in the European Convention on Human Rights. They want to see that “right” overrule the right to life guaranteed in Ireland’s Constitution, which “acknowledges the right to life of the unborn” and commits the state to protect that right, but permits citizens to travel freely to other countries to obtain abortions.
The European Court of Human Rights, which is the same court that ruled last November that the crucifixes hanging in every Italian public school classroom were a “violation of the freedom of parents to educate their children according to their own convictions and of the religious freedom of the students,” began hearing A, B et C v. Ireland in mid-December. The plaintiffs, who traveled to the United Kingdom to obtain abortions, have challenged Ireland’s law, saying the expense and hardship involved in going abroad for the procedure constituted a violation of their human rights. They argue they should have been given access to abortion in Ireland.
One woman, who is recovering from drug and alcohol abuse, has children in social care. She said that to continue her pregnancy would have jeopardized her chances of regaining custody of her other children.
Another woman was told that she was in danger of an ectopic pregnancy. The third was undergoing treatment for cancer.
One woman is Latvian; the other two are Irish.
The three have not attempted to take the case through the Irish court system, opting instead to go to the European court for judgment.
That troubled Bill Saunders, senior vice president of Americans United for Life, a consultant in the case who was in Strasbourg for the hearings. He pointed out that the European Convention on Human Rights requires that all possible domestic remedies be exhausted before the European Court of Human Rights has jurisdiction. In this case, the plaintiffs were able to go to the court’s Grand Chamber, bypassing its lower chamber.
The European Court of Human Rights has dealt with abortion law before. In 2003, the Tysiac v. Poland case was brought against the Polish government by a woman seeking an abortion who claimed that her deteriorating eyesight was caused by her pregnancy. One general practitioner supported her claim; five expert doctors found that there was no connection between the two.
After the birth of her child, three more experts again found no connection, but the European Court of Human Rights ignored those eight expert opinions in favor of the one expressed by the general practitioner. The European Court of Human Rights ruled against the Polish government in 2007 and imposed a fine.
But Saunders said that the Irish government had put forward its case well. The plaintiffs advanced a series of unprovable assertions and questionable claims, such as “The Irish people want to liberalize abortion,” he said.
Saunders said the case could determine whether the court will take a step back from deciding on signatory states’ policies on issues like abortion, or whether its judges will exploit the Tysiac finding to force countries like Ireland to justify why they do not have abortion like most European Union member states.
The Irish Family Planning Association declined comment, referring the Register to its website, where a statement contends that Ireland has breached the women’s human rights under various articles of the European Convention on Human Rights. The organization cites in particular Articles 2 (Right to Life), 3 (Prohibition of Torture), 8 (Right to Respect for Family and Private Life) and 14 (Prohibition of Discrimination).
But the court’s mandate is to enforce implementation of the convention, and Article 2 says that “everyone’s right to life shall be protected by law.”
The Irish government, which is defending the case, did not wish to make any statement pending the outcome of the case.
Precious Life, an Irish pro-life group, issued a statement noting, “Any decision on abortion in Ireland should only be made by the Irish people, who have the sovereign right to decide on issues of national importance. This is not a matter for a foreign court to decide.”
Citing Ireland’s low maternal mortality rate as proof of the safety afforded pregnant women in the country, Precious Life contended: “No woman in Ireland is refused legitimate medical treatment for any complication during pregnancy. For example, medical treatment for an ectopic pregnancy is a perfectly legitimate procedure in Ireland.”
Though the judicial outlook is mixed, one thing that pleased Saunders was seeing a lot of young people from Ireland outside the court carrying pro-life posters.
The case is due to be decided in the spring.
Gareth Peoples writes from Derry, Ireland.
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