Good News, Bad News in European Abortion Decision

by William Saunders

The European Court of Human Rights today released its judgment in ABC v. Ireland, a case in which three unnamed women claimed a right to abortion under the European Convention on Human Rights sufficient to trump Ireland’s own pro-life constitutional provisions.

First, the good news. The ECHR held there was no right to abortion under the convention, which is binding on 47 nations. Thus, each nation may decide for itself what to do about abortion. While this is good news, it shouldn’t be surprising — the convention never mentions the word “abortion.”

But here’s the bad news. The ECHR told Ireland that its domestic laws were insufficient regarding one of the three plaintiffs. That plaintiff claimed her cancer might recur if she couldn’t get an abortion and might lead to her death. The ECHR said since Ireland’s constitution provides a right to abortion, Irish laws must provide an effective way to secure that right. Furthermore, the court said, since current Irish law did not, there was no need for the plaintiff to exhaust local remedies (i.e., to sue first in Irish courts), despite provisions of the convention requiring precisely that. This continues a trend of the ECHR poking its nose into nations’ domestic laws on abortion under the guise of “procedural” issues, as it did in the Tysiac v. Poland case.

But, perhaps more importantly, the ECHR mischaracterized the Irish constitution. It does not provide for a “right to abortion.” Rather, it ensures the right to life of both mother and child. (Interestingly, a decision by the Irish supreme court held that where suicide is likely, an abortion in permitted.)

In essence, in its ABC decision, the ECHR is telling Ireland to enact laws (or policy guidance) that implement “the right to abortion when the mother’s life is at risk.” When one considers that there was no imminent or proven (since the plaintiff never went to court in Ireland) risk of death in this case (only a fear by one of the plaintiffs that her pregnancy could trigger a recurrence of a cancer that might prove fatal), any directive from the Irish government to doctors to begin “prescribing abortion” in such cases, i.e., when someone fears merely the possibility of a fatal illness (there is no reason to think this is restricted to cancer cases alone), will likely result in a wholesale liberalization of “abortion rights” in Ireland.

That, however, is something the (overwhelmingly pro-life) citizens of Ireland must wrestle with, perhaps further amending their constitution to ensure this loophole in their pro-life laws is closed. For other pro-life people across the world, however, the decision in ABC is reason to rejoice.

William Saunders is senior vice president for legal affairs at Americans United for Life.