What did the European Court of Human Rights rule in the Irish abortion case?

Human RightsEverything and its opposite has been said about this new ruling of the ECHR. In this post, I’m trying to expose with a cold head what exactly was said by the court and what the scope of the ruling is. But yes, I’ll allow myself to express an opinion in the conclusion...

First, it should be understood what the ECHR is. It is a court whose authority overrules that of any of the member states. Its rulings take precedence over even the states' constitutions.

It is not, though, a last-resort appeals court in all cases as its jurisdiction remains strictly within the boundaries of the topics covered in the European Convention on Human Rights. That convention is in turn based on the 1948 Universal Declaration of Human Rights but it is not equivalent to it. For example, the UDHR establishes no limitation to the right to life whereas the ECHR still has some provisions for states to retain the death penalty. In other words it's somehow watered down to diminish the barrier to entry. One thing to point out is that the ECHR is bounding for states whereas the UDHR was more a statement of intentions the following of which by states is enforced by no court of law.

The new ruling by the ECHR is responding to a claim based on Articles of the Convention 2 (right to life), 3 (prohibition of inhuman or degrading treatment), 8 (right to privacy) and 14 (prohibition of discrimination). Now this seems strange at first: what could privacy possibly have to do with abortion? Well, in order to understand that you need to know about abortion law in Ireland as well as about the three particular cases of the applicants.

Since 1983, the Irish Constitution protects the life of the unborn within the limits of equal protection of the life of the mother. This means that it is in principle legal to get an abortion if the pregnancy threatens your life (and that includes suicide). In 1992, the Constitution was amended again to allow for women to freely travel abroad in order to get an abortion without risking to be prosecuted in Ireland (where the penalty is life imprisonment).

Of the three applicants, two aborted for health and well-being reasons and the other because her life was threatened by the pregnancy.

Article 2 thus really only could have applied to the third applicant, but all three were free to travel to get that abortion so nobody's life was directly threatened by the Irish Constitution.

Article 3 was ruled out by the Court as the psychological and physical burden of traveling to get an abortion was not inhuman or degrading.

Article 8 is more interesting and is where the confusion comes from. The court confirmed that it would be a stretch to interpret it as giving a right to abortion. BUT it did also state that prohibition of abortion was "within the scope of the applicant's right to respect for their physical and psychological integrity, hence within their private lives, and thus under Article 8".

If that sounds a little schizophrenic to you, you're not alone. If I may rephrase, they are saying that Article 8 does provide some guarantees to citizens that the State can't interfere with a their right to do what they want with their bodies. But as we've alluded to before about the death penalty the Convention is more accommodating to states than the UDHR. In the case of Article 8, this comes under the following form:

"There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Did you notice that thing about "morals"? That's the loophole. This is the part that is arbitrary and allows a state to completely destroy the spirit of the Article. Case in point, the Court indicated in its press release:

"That interference had been in accordance with the law and had pursued the legitimate aim of protecting public morals as understood in Ireland."

As understood in Ireland.

In summary, the Court is not saying the Irish Constitution is in accordance with the Article in essence but rather that it is departing from it in a way that is compatible with its restrictions.

That was for the first two applicants, which is a clear victory for the anti-abortionists.

Now the third case -where the life of the applicant was threatened- was ruled separately and is something else entirely. In this case, the court ruled that Ireland had not effectively made the due diligence to provide that woman with the means to exert her rights to an abortion as guaranteed by the Constitution. Ireland is condemned to pay her 15,000 Euros.

That is for the third applicant, which is a clear victory for pro-abortionists.

This is not the first time the Court rules about abortion. There have been quite a few cases before. It should be pointed out that these three recent cases were a little convoluted as they were going through the article about privacy, but not directly touching to the bottom of the issue, which is to determine whether the fetus has rights and what  these rights are. Previous rulings on this were far more explicit:

"In 1980, the Court ruled out the foetal right to sue the mother carrying the foetus. In Paton v. United Kingdom, it was decided that the life of foetus is "intimately connected with, and cannot be regarded in isolation from, the life of the pregnant woman".{Paton v United Kingdom (1981) 3 EHHR 408 at para 22}"

It is not surprising that both extremes of the ideological spectrum on this issue would pretend that these rulings favor their views: the Court actually provided two distinct rulings that although not contradictory do go in opposite directions.

Let's face it: Europe is massively pro-abortion with only a handful of smaller states out of the 27 still having hard anti-abortion laws.

If the Irish society follows the path of other European nations, in a generation or two the consensus about abortion and morality may be quite different. When that happens, the "public morals" argument used by the court in the first part of the ruling will not apply anymore and the Constitution will need to be amended again.