2010: year of “profound moral views”?

2010 was a turbulent year for the European Court of Human Rights. The Court has been under fire both for usurping too much power and for achieving too little. The first type of critique is made by conservatives who recycle the old idea that an international court has no legitimacy to judge the situation on the ground in individual states; this year vocally proclaimed in for, for example, the Netherlands (in Dutch) and Russia. The second type of critique – that the Court is doing too little – refers primarily to the huge backlog in cases. The Court is not managing its workload; therefore we saw such initiatives as the Interlaken Conference.[1]  

 To my mind, the year was characterized by an intense debate about the legal relevance/importance of an individual society’s moral values.  The abortion case of A, B and C v. Ireland is the most recent of a series of high-profile cases, all delivered in 2010 and all essentially revolving around the question to what extent the Strasbourg Court should take national morality into account when determining whether human rights violations have taken place in a certain state.  Apart from the abortion case, I’m thinking here of cases concerning sexual orientation (Schalk and Kopf v. Austria and Alekseyev v. Russia) and sex discrimination (Konstantin Markin v. Russia). What follows is a brief review and a critique of A, B and C v. Ireland. Continue reading

A., B. and C. v. Ireland: Abortion and the Margin of Appreciation

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.

Continue reading