By Piero A. Tozzi, J.D.
December 3, 2009 (C-FAM) - Irish abortion laws and sovereignty stand in the dock next week when the European Court of Human Rights (ECHR) hears a challenge to Ireland's constitutional protection of life "from conception."
Three petitioners in the case A, B & C v. Ireland allege that they were forced to travel overseas to obtain abortions, undergoing unnecessary expenses and hardship due to the nation's pro-life laws. They claim violations of various rights under the European Convention on Human Rights.
Third-party interveners Society for the Protection of Unborn Children (SPUC), the European Center for Law and Justice and the Alliance Defense Fund (on behalf of Family Research Council), contend that it is "Ireland's sovereign right to determine when life begins" and what rights attach to pre-natal life. They also claim that domestic remedies have not been exhausted, and that therefore the ECHR lacks jurisdiction to hear the case.
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Ireland's constitution "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." The country's recent approval of the Lisbon Treaty after receiving guarantees that its pro-life constitution would remain unaffected has raised the stakes of the Court's decision.
Skeptics of the ECHR's ability to be impartial where "abortion rights" are implicated point to the court's 2007 ruling Tysiac v. Poland, which held that Poland had violated the European Convention by denying a woman a "therapeutic" abortion that allegedly would have saved her eyesight. The woman there had obtained a certificate from a general practitioner as a prerequisite to obtaining an abortion allowable under Polish law, which remains among Europe's most protective of the unborn. Five medical experts overruled the general practitioner, determining that the ongoing deterioration in eyesight was unrelated to her pregnancy – a finding seconded post-delivery by a review panel of three additional experts. Despite this, as the dissent pointed out, the ECHR credited the one generalist's opinion over that of eight experts to reach the desired result.
Jakob Cornides, a European legal commentator who has criticized the Tysiac decision, distinguished that case from the present one, noting that, "rightly or wrongly, Tysiac was premised upon the notion that Ms. Tysiac's contemplated abortion would have been legal under Polish law, and if lawful, it should have been available. In Ireland, however, the constitution protects unborn life and legislation indisputably prohibits abortion."
Cornides further points out that "the Court so far has avoided taking a position on whether abortion should be legal or not, leaving this question to national legislators. It would indeed be inconceivable that countries like Ireland or Poland, to name just two, would have signed up to the Convention if they foresaw an explicit or implicit 'right to abortion.'"
Irish voters overwhelmingly approved Ireland's pro-life constitutional provision in a 1983 referendum. Pro-lifers further note that Ireland has the world's lowest rate of maternal mortality in childbirth, as confirmed in a recent report by the World Economic Forum.
