December 17, 2010
A., B. and C. v. Ireland concerned three Irish applicants who, in their first trimester of pregnancy, had travelled to England to have an abortion because they believed they would not be allowed to have one in Ireland.
The Irish Constitution, unlike the European Convention on Human Rights, explicitly extends the right to life to the unborn foetus. Abortion is moreover prohibited under the criminal law by section 58 of the Offences Against the Person Act 1861 (“the 1861 Act”) providing as penalty “penal servitude for life”. However, this does not mean that abortion constitutes a criminal act in all circumstances in Ireland. The 1861 legislation needs to be read in light of the amended Irish Constitution, which states in Article 40.3.3: “3° The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right; This subsection shall not limit freedom to travel between the State and another state; This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.”
However, no legislation or other regulatory measures have been adopted to clarify what is meant by the “equal right to life of the mother” and in which situations there is a real and substantial risk to that right to life such as to outweigh the right to life of the unborn foetus.
In A., B. and C. v. Ireland the Grand Chamber of the Court first distinguished between the circumstances of the first and the second applicant on the one hand and the third applicant on the other. It found that the first and second applicant travelled for an abortion for reasons of health and/or well-being, while the third applicant travelled for an abortion as she mainly feared her pregnancy constituted a risk to her life. Moreover, the third applicant complained that she required a regulatory framework by which any risk to her life and her entitlement to a lawful abortion in Ireland could be established, so that any information provided outside such a framework was insufficient. The Court consequently treated the complaint of the third applicant separately.
Having rejected all complaints under Article 3, the Court first reaffirmed that Article 8 cannot be interpreted as conferring a right to abortion, but that the applicants’ complaints do come within the scope of their right to respect for their private lives and accordingly Article 8.
The first and second applicants
The first and second applicants firstly maintained that the will of the Irish people had changed since the 1983 referendum so that the legitimate aim accepted by the Court in Open Door and Dublin Well Woman v. Ireland (29 October 1992) – the protection of morals of which the protection in Ireland of the right to life of the unborn was one aspect – was no longer a valid one. However, the Court denied this argument recalling several public reflection processes, including the referendum on the Lisbon Treaty, which according to the Court reflected profoundly differing opinions and demonstrated the sensitivity and complexity of the question of extending the grounds for lawful abortion in Ireland.
The Court, in determining the proportionality of the restrictions, elaborated a lengthy reasoning on the extent of the margin of appreciation in the instant case. The Court first held that here can be no doubt as to the acute sensitivity of the moral and ethical issues raised by the question of abortion or as to the importance of the public interest at stake. A broad margin of appreciation was, therefore, in principle to be accorded to the Irish State in determining the question whether a fair balance was struck between the protection of that public interest, notably the protection accorded under Irish law to the right to life of the unborn, and the conflicting rights of the first and second applicants to respect for their private lives under Article 8 of the Convention. However, the Court then examined the question whether this wide margin of appreciation needed to be narrowed by the existence of a relevant European consensus. The Court considered that such a consensus exists amongst a substantial majority of the Contracting States of the Council of Europe towards allowing abortion on broader grounds than accorded under Irish law. In particular, the Court noted that the first applicant could have obtained an abortion justified on health and well-being grounds in approximately 40 Contracting States and the second applicant could have obtained an abortion justified on well-being grounds in some 35 Contracting States. Furthermore, Ireland is the only State which allows abortion solely where there is a risk to the life (including self-destruction) of the expectant mother. Most surprisingly (see the dissenting opinion below) however, the Court did not consider that this consensus decisively narrowed the broad margin of appreciation of the State.
In coming to this conclusion, the Court firstly referred to its finding in Vo v. France that the question of when the right to life begins came within the States’ margin of appreciation because there is no European consensus on the scientific and legal definition of the beginning of life and that it is impossible to answer the question whether the unborn was a person to be protected for the purposes of Article 2. Since the rights claimed on behalf of the foetus and those of the mother are inextricably interconnected, the margin of appreciation accorded to a State’s protection of the unborn necessarily translates into a margin of appreciation for that State as to how it balances the conflicting rights of the mother. According to the majority it followed that, even if it appears from the national laws referred to that most Contracting Parties may in their legislation have resolved those conflicting rights and interests in favour of greater legal access to abortion, this consensus cannot be a decisive factor in the Court’s examination of whether the impugned prohibition on abortion in Ireland for health and well-being reasons struck a fair balance between the conflicting rights and interests, notwithstanding an evolutive interpretation of the Convention.
Secondly the Court referred to the lengthy, complex and sensitive debate in Ireland as regards the content of its abortion laws and to the choice which has emerged from this debate. Irish law prohibits abortion in Ireland for health and well-being reasons but allows women, in the first and second applicants’ position who wish to have an abortion for those reason, the option of lawfully travelling to another State to do so.
It is with this choice that the first and second applicants took issue. However, in the opinion of the majority, it is equally to this choice that the broad margin of appreciation centrally applies. Accordingly, having regard to the right to lawfully travel abroad for an abortion with access to appropriate information and medical care in Ireland, the Court did not consider that the prohibition in Ireland of abortion for health and well-being reasons, based as it is on the profound moral views of the Irish people as to the nature of life and as to the consequent protection to be accorded to the right to life of the unborn, exceeded the margin of appreciation accorded in that respect to the Irish State. Article 8 had thus not been violated.
The third applicant
The third applicant’s complaint concerned the failure by the Irish State to implement Article 40.3.3 of the Constitution by legislation and, notably, to introduce a procedure by which she could have established whether she qualified for a lawful abortion in Ireland on grounds of the risk to her life of her pregnancy.
The Court first noted that no criteria or procedures have been subsequently laid down in Irish law, whether in legislation, case law or otherwise, by which that risk is to be measured or determined, leading to uncertainty as to its precise application. Against this background of substantial uncertainty, the Court considered it evident that the criminal provisions of the 1861 Act would constitute a significant chilling factor for both women and doctors in the medical consultation process, regardless of whether or not prosecutions have in fact been pursued under that Act.
The Court concluded that the uncertainty generated by the lack of legislative implementation of Article 40.3.3 had resulted in a striking discordance between the theoretical right to a lawful abortion in Ireland on grounds of a relevant risk to a woman’s life and the reality of its practical implementation. Article 8 had thus been violated in the instant case.
Regarding the remedy to be taken, the Court cautiously hinted towards legislative change: “as to the burden which implementation of Article 40.3.3 would impose on the State, the Court accepts that this would be a sensitive and complex task. However, while it is not for this Court to indicate the most appropriate means for the State to comply with its positive obligations […] the Court notes that legislation in many Contracting States has specified the conditions governing access to a lawful abortion and put in place various implementing procedural and institutional procedures […]. Equally, implementation could not be considered to involve significant detriment to the Irish public since it would amount to rendering effective a right already accorded, after referendum, by Article 40.3.3 of the Constitution.” Seeing its earlier criticism of the lack of legislative action to clarify the content of Article 40.3.3. of the Constitution and in light of the fact that such legislative change clearly remains the only means available to Ireland to comply with the judgment, it is somewhat surprising that the Court would use such moderate language. Presumably, the Court is concerned here with not coming across as the strict parent, sternly telling his disobedient child how to behave, instead preferring to play the role of the teacher, steering his pupil in a direction while letting him believe it was his own choice.
Judges Rozakis, Tulkens, Fura, Hirvelä, Malinverni and Poalelungi expressed a partly dissenting opinion, finding also a violation of Article 8 in the case of the first and the second applicant, which I largely consider to offer a more coherent appraisal of the case and the role of the margin of appreciation.
In their dissenting opinion, the Judges firstly made it clear that the “issue before the Court was whether, regardless of when life begins – before birth or not – the right to life of the foetus can be balanced against the right to life of the mother, or her right to personal autonomy and development, and possibly found to weigh less than the latter rights or interests. And the answer seems to be clear: there is an undeniably strong consensus among European States – and we will come back to this below – to the effect that, regardless of the answer to be given to the scientific, religious or philosophical question of the beginning of life, the right to life of the mother, and, in most countries’ legislation, her well-being and health, are considered more valuable than the right to life of the foetus.”
Most importantly, the dissenters emphasised that “it is the first time that the Court has disregarded the existence of a European consensus on the basis of “profound moral views”. Even assuming that these profound moral views are still well embedded in the conscience of the majority of Irish people, to consider that this can override the European consensus, which tends in a completely different direction, is a real and dangerous new departure in the Court’s case-law. A case-law which to date has not distinguished between moral and other beliefs when determining the margin of appreciation which can be afforded to States in situations where a European consensus is at hand.”
Regarding the use of the margin of appreciation doctrine, I basically agree with the dissenting Judges that it is a surprising move for the Court to first find the existence of a clear European consensus and then still allow Ireland a wide margin of appreciation on the basis of moral views. When are these moral views appropriate? When do they concern a matter that, despite being organised in an opposite direction by nearly all other European States, still allows for a broad margin of appreciation? These are questions we are now left with. Yet another twist to the maze that is the margin of appreciation doctrine.
I would also like to emphasise a fact brought forward by the applicants, and in my opinion unduly considered by the majority: the changing attitudes towards abortion within Ireland. As seen above, the majority denied an argument by the applicants to this effect. It is, however, important to reflect the 2003 survey that provided the main basis for the applicants’ argument. This 2003 survey showed that the acceptability of abortion in various circumstances “had increased substantially in the population over time”, compared to the 1986 general survey on abortion. The report of the survey concluded that “a notable change in attitudes towards abortion was observed over the seventeen-year period (1986-2003), with a substantially higher proportion of the population supporting a choice of abortion in some or all circumstances in the more recent [CPA] survey”. (Figures are available in § 84 and following of the judgment)
I would argue that a survey of 3000 individuals is at least statistically relevant enough to cast doubts on the supposed undeniable importance of the moral views of the Irish population. This survey – and other figures – shows that there is no such thing as one moral view on abortion, held by the entire Irish population. Reasoning on the basis of such an assumption leads to what scholars such as Ronald Dworkin and George Letsas have logically argued against: pro-majoritarian bias, leading to a lesser protection of the rights of minorities (in the wide sense). In my opinion, their arguments are compelling and offer a strong reason not to use the margin of appreciation doctrine in weighing different interests when public morals are involved at one end of the scales, irrespective of the existence of a European consensus (see also Handyside v. The United Kingdom. Compare: Otto-Preminger-Institut v. Austria and Wingrove v. The United Kingdom, concerning insult to religious feelings of the majority religion).
Unfortunately, abortion cases are also the cases in which it is most difficult for the Court to refrain from using the margin of appreciation doctrine altogether, because the only alternative open to the Court is to determine the status of the unborn foetus autonomously and start the case from that question, balancing the right/interests involved. For obvious reasons, the Court is unwilling to go into the question of the right to life of the foetus, as that would lead to a square confrontation with the member States and would deny them also a margin of appreciation to ‘decide’ when life begins. It must be pointed out that both relevant questions are to some extent intrinsically linked: how one answers the question “when does life begin?” will necessarily have an impact on how one balances the rights/interests of the unborn child with the rights of the mother in one’s domestic legislation. Thus, allowing a margin of appreciation for the first question, but not for the second, may prove difficult. Nonetheless, the dissenters teach us to not conflate both questions. One solution that thus remains open is to confirm the European consensus regarding the striking of the balance and allowing a narrower margin of appreciation in that respect, rather than awarding a wide margin on the basis of moral views, despite the European consensus.
For extensive coverage of the case – and further links – over on Human Rights in Ireland (www.humanrights.ie), click here.
 The latter could be considered a more defensible use of the doctrine, although I do not think it necessarily is.