Bench Memos

A Sign for ABC, but Which Way Does It Lead?

On April 1, the European Court of Human Rights (ECHR) struck down provisions in Austria’s law regulating assisted-procreative technologies in the case S. H. and Others v. Austria. The court acknowledged that the issue of assisted procreation is one that necessarily has a “wide margin of appreciation.” That means, or at least is supposed to mean, how to regulate (or not regulate) assisted procreation is reserved to each member state of the Council of Europe.

So, why did the ECHR reach into an area reserved to Austria? The court held the margin of appreciation meant Austria was not obligated to allow assisted-procreative technology at all, but, once Austria did allow it, regulations had to be framed in a non-discriminatory way. The court found Austria’s law was discriminatory and thus violated the plaintiffs’ Article 14 rights under the European Convention on Human Rights.

In 2007, the court in Tysiac v. Poland offered a similar rationale when it held Poland to have violated the Convention in a case involving abortion, which Poland allowed in very limited circumstances. Abortion is another area of the law in the margin of appreciation. However, the decision in Tysiac held: “Once the legislature decides to allow abortion, it must not structure its legal framework in a way that would limit real possibilities to obtain it.”

What do these decisions mean for the abortion case heard by the court in December 2009, ABC v. Ireland? Plaintiffs in ABC challenged Ireland’s constitutional protection of the unborn as a violation of their Convention rights because they had to travel outside of Ireland to obtain legal abortions. They based their arguments, in part, on the court’s ruling in Tysiac.

Notably, the court in Tysiac did not hold that Poland must permit abortion. That decision still lies with a member state’s legislature under the margin of appreciation. Ireland’s legislature has decided not to allow abortion. Thus, under its rationale in Tysiac, the court should uphold Ireland’s law.

This may be buttressed by the decision in S. H. and Others v. Austria. The court reiterated that where an issue falls in the margin of appreciation, it is left to the member state to decide whether or not to allow it. Just as they held Austria is not required to allow assisted procreation at all, they should hold that Ireland is not required to permit abortion.

However, the S. H. and Others decision could be a sign in the opposite direction. It could indicate an increasing appetite on the part of the ECHR to stick its nose into matters left to member states under the margin of appreciation. If that is the case, the prospects for Ireland’s constitutional provisions against abortion are dimming.

Time will tell which interpretation of S. H. and Others v. Austria is correct. Whichever trend it signifies has enormous implications for the rights of the peoples of the various member states to rule themselves, free of judicial interference.