European court: Ireland’s abortion laws breach human rights

The European Court of Human Rights seems to think that abortion is a human right.

From The Catholic Herald:

European court rules that Ireland’s abortion laws breach human rights

By Michael Kelly on Thursday, 16 December 2010

The European Court of Human Rights has ruled that Ireland’s laws banning abortion breach European human rights law.

In a landmark and binding case [It is unclear to me how this ruling can be "binding".  Perhaps Europeans can explain that.] that could have implications for other European countries, the court ruled that Ireland had breached the human rights of a woman with a rare form of cancer who feared it would relapse if she became unintentionally pregnant.

But the woman was unable to find a doctor willing to judge whether her life would be at risk if she continued her pregnancy to term. [Did that violate a human right?  That she couldn't find a doctor who would say that?  She has the right to a doctor who will tell her what she wants to hear?]

The court concluded today that neither the “medical consultation nor litigation options” relied on by the government constituted an effective or accessible procedure.

“Moreover, there was no explanation why the existing constitution right had not been implemented to date,” the court ruled.

While abortion remains a criminal offence under 1861 legislation, a technical constitutional right to abortion does exist in Ireland following a 1992 Supreme Court ruling. In a controversial judgment known as the “X case”, the court established the right of Irish women to an abortion if a pregnant woman’s life was at risk as a result of the pregnancy.

However, successive governments have not legislated on the issue, and several constitutional referenda variously aimed at either enacting or revoking the judgment have proved inconclusive.

Guidelines from the Irish Medical Council describe abortion as “professional misconduct”.

The European court case was filed in 2005. In 2009 it had an oral hearing before the court’s grand chamber. This 17-judge court is reserved to hear cases that raise serious questions affecting the interpretation of the European Convention of Human Rights. As a signatory to the European Convention on Human Rights – now incorporated into Irish law – the government is obliged to remedy any breaches of the convention.

Ireland and Malta are the only member-states of the Council of Europe in which abortion remains illegal.

[...]

You can read the rest there.

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About Fr. John Zuhlsdorf

Fr. Z is the guy who runs this blog. o{]:¬)
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10 Responses to European court: Ireland’s abortion laws breach human rights

  1. Magpie says:

    What this lady C wanted to do was pre-emptively strike her unborn child in case she might relapse with cancer.

    The judgement of the ECHR is not binding, but Ireland will feel itself to be under pressure to comply by enacting legislation addressing the decision of the supreme court in the X Case or they could hold a referendum.

    From wikipedia:

    Attorney General v. X (more commonly known as the “X Case”) was was a 1992 Irish Supreme Court case which established the right of Irish women to an abortion if a pregnant woman’s life was at risk because of pregnancy, including the risk of suicide.

  2. Gregorius says:

    I don’t understand. From what I read from Zenit (http://www.zenit.org/article-31255?l=english), the court upheld the Irish constitution. Am I missing something here? Or is this a different case?

  3. Childermass says:

    Father, if only we in America had the ECHR rather than the US Supreme Court.

    1) Ireland, Malta and Poland’s banning of abortion

    and

    2) virtually all of European countries’ more restrictive abortion laws

    would be invalidated under the regime of Roe v. Wade.

    If ECHR considered abortion an inherent right, it would not allow the restrictions and even outlawing of abortions in the participating European states.

  4. kbf says:

    Just like in the US, laws have a hierarchy where some laws have to be interpreted through the lens of another. So for example, in the UK a contract would be legally binding if it fits the criteria for being a binding contract (offer, acceptance, consideration), and any person can enter into a legally binding contract providing they are over 18 years of age and sane. However, the Unfair Contract Terms Act limits what may or may not be agreed to, and a contract legally entered into may be declared null and void if it can be argued that the latter Act applies.

    The European Convention on Human Rights is much the same. It requires that every law passed must conform to its governing principles. Without knowing the details of the case the European Court of Human Rights will interpret the domestic law in light of whether it upholds or breaches a fundamental human right and makes a judgement. This means that the domestic law must be altered to ensure it complies with the ruling. If it doesn’t the ECHR doesn’t have the power to change domestic law but it can award substantial damages to anyone bringng a case citing the decision as a precedent. So it’s binding in as much as it would be expensive not to ammend the law because it would open the door to signifcant damages claims in the future.

  5. Discipulus Humilis says:

    I wonder if the concerns about national sovereignty are not slightly overblown. See, for example, the comments in: http://www.indcatholicnews.com/news.php?viewStory=17330. Ireland seems to have brought this upon itself with its Supreme Court decision in the “X” case. If a country’s high court declares a constitutional “right” to an act, the ECHR has at least some justification for ruling that precluding exercise of that “right” is a violation of human rights.

    Gregorius, I’m out of time so I just took a cursory glance at the article you provided. It seems like it’s portraying this decision somewhat optimistically. Ireland’s ban on abortion is arguably qualified with an exception, and perhaps it’s possible to interpret this decision as the ECHR upholding that ban, but again with the exception in place. I note that in the article, one of the comments emphasizes that the protection of unborn life is not absolute. Please correct me if I’ve missed something.

  6. bmadamsberry says:

    I hate to correct you, Father, but what the court actually ruled was that there was a small part of the law that did not meet the ECHR.
    http://www.huffingtonpost.com/rory-fitzgerald/what-the-echrs-ruling-on-_b_797759.html

  7. “As a signatory to the European Convention on Human Rights – now incorporated into Irish law – the government is obliged to remedy any breaches of the convention.”

    I would remedy the breach by taking a copy of the Convention and burning it.

  8. mike cliffson says:

    FR,Folks:
    1.If You follow the link father put in , the other two cases are there . I’d say this article is more insightful, European wise than what you might find clearer,the two Lifesitenews reports , detailing the three(putup jobs) cases heard together.
    2.There might be a case, were time to stand still, for preferring some aspects of the ECHR compared to US Supreme Court -but the point is rather that it’s the way the RATCHET is turning. This case has pushed abortion closer to Ireland, despite their constitution.Malta and Poland are very much in the firing line.
    3.The non- bindingness is a quibble, for multiple technical reasons which I cannot keep in my mind.Anyone more into law more than I can search through Mr Tebbit’s and Mr Hannon’s blogs at the telegraph uk-( there are probably technically better ones , but not that I could understand at all),a good forty or fifty posts over the last few yrs, especially with regard to the Lisbon treaty, touch on the subject. Untouchablity of national constitutions is less than it was – and lessening.
    4. The whole of the EU system, not just the judiciary, is more and more openly antifamily and antilife, antichristian and anticatholic. Hitler’s education laws have been upheld as against German parents,giving unfettered primacy to the state over parents regarding education, for example.I insist, it’s a RATCHET. It may not move forward much, yet it never even wholly maintains the staus quo.
    5.All in all, on the face of it, a “good “day for evil, albeit not as favourable-yet- as Satan might be supposed to wish.

  9. This is just very very bad reporting, on the part of several newspapers (including Irish ones) and the wire reports – all of whom seem to be relying on a Planned Parenthood affiliate in Ireland for their analysis.

    The court dismissed two of the three cases (all of which demanding a “right” to abortion), and upheld the third. This was, as a poster above mentioned, because the Irish Supreme Court said there was a “right” to abortion if the life of the mother was at risk. Therefore, the European Court was just holding Ireland to its own “standards”.

    This ruling does not, it seems, in any way change the law in Ireland. And, again, it is somewhat of a moot point, since the Irish Medical Organization (like the American Medical Association) forbids doctors in the country to perform any abortion on ethical grounds.

  10. Sorbonnetoga says:

    A few small clarifications: The Supreme Court of Ireland has already ruled that there is no obligation to follow or to legislate on foor of ECHR judgments; what political pressure follows an ECHR decision is another matter entirely.

    Also the Irish Medical Organisation is a representative body not a regulatory one. The Medical Council governs the medical and surgical professions in Ireland and their ethical code does still exclude abortion but the majority of its members are non-clinicians appointed by the Minister for Health, so it may not stay that way for long. The ECHR judgment is actually 90% good news for the prolife side but the Irish media are trying to spin it in favour of their preferred (i.e. pro-abortion) side.