Friday 17 December 2010

Grand Chamber Abortion Judgment on Ireland

Yesterday, the Grand Chamber of the European Court of Human Rrights issued its judgment in the long-awaited case of A, B, and C v Ireland on abortion rights. Essentially, the Court held that Ireland must enable access to abortion in situations in which a woman's life is at risk. Although legally and in theory this was already possible in Ireland, doctors assisting in this faced criminal sanctions if after the fact the life of the woman could be shown not to have been at risk - a powerful dissuader in practice to access to abortion. Leaving a margin of appreciation, the Court did not hold that the ECHR obliges states to allow abortion in other situations. A wide variety of abortion legislation throughout Europe is thus still possible. The judgment dealt with the complaints of three women, in different situations, but having in common that they felt compelled to travel from Ireland to the United Kingdom in order to undergo an abortion, because of the legal restrictions in Ireland itself.

The applicants complained about Article 3 ECHR (prohibition of ill-treatment), amongst others, but the Court held that although (para. 163) "travelling abroad for an abortion was both psychologically and phydically arduous for each of the applicants", this did not reach the minimum level of severity for Article 3 to apply.

The core of the complaints was assessed under the right to private life (Article 8 ECHR). Under that provision the Court emphasized the following, on the margin of appreciation of states (paras. 231-238 - and let me quote at length here):

231. The Court considers that the breadth of the margin of appreciation to be accorded to the State is crucial to its conclusion as to whether the impugned prohibition struck that fair balance. The Government maintained that, in the context of abortion laws, the State’s margin was significant and unaffected by any European or international consensus. The first and second applicants argued that, while a margin was to be accorded, the right to life of the unborn could not be accorded primacy to the exclusion of the proportionate protection of the rights of women and, further, that it was crucial to take account of the consensus outside of Ireland towards broader access to abortion.

232. The Court recalls that a number of factors must be taken into account when determining the breadth of the margin of appreciation to be enjoyed by the State when determining any case under Article 8 of the Convention. Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will normally be restricted (see Evans v. the United Kingdom [GC], cited above, § 77). Where, however, there is no consensus within the Member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues, the margin will be wider (Evans v. the United Kingdom [GC], cited above, § 77; X., Y. and Z. v. the United Kingdom, judgment of 22 April 1997, Reports of Judgments and Decisions 1997-II, § 44; Frette v. France, no. 36515/97, § 41, ECHR 2002-I; Christine Goodwin, cited above, § 85). As noted above, by reason of their direct and continuous contact with the vital forces of their countries, the State authorities are, in principle, in a better position than the international judge to give an opinion, not only on the “exact content of the requirements of morals” in their country, but also on the necessity of a restriction intended to meet them (Handyside v. the United Kingdom judgment and the other references cited at paragraph 223 above).
233. There can be no doubt as to the acute sensitivity of the moral and ethical issues raised by the question of abortion or as to the importance of the public interest at stake. A broad margin of appreciation is, therefore, in principle to be accorded to the Irish State in determining the question whether a fair balance was struck between the protection of that public interest, notably the protection accorded under Irish law to the right to life of the unborn, and the conflicting rights of the first and second applicants to respect for their private lives under Article 8 of the Convention.
234. However, the question remains whether this wide margin of appreciation is narrowed by the existence of a relevant consensus.
The existence of a consensus has long played a role in the development and evolution of Convention protections beginning with Tyrer v. the United Kingdom (25 April 1978, § 31, Series A no. 26), the Convention being considered a “living instrument” to be interpreted in the light of present-day conditions. Consensus has therefore been invoked to justify a dynamic interpretation of the Convention (Marckx v. Belgium, judgment of 13 June 1979, Series A no. 31, § 41; Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, § 60; Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, § 102; L. and V. v. Austria, nos. 39392/98 and 39829/98, § 50, ECHR 2003-I and Christine Goodwin v. the United Kingdom [GC], cited above, § 85).
235. In the present case, and contrary to the Government’s submission, the Court considers that there is indeed a consensus amongst a substantial majority of the Contracting States of the Council of Europe towards allowing abortion on broader grounds than accorded under Irish law. In particular, the Court notes that the first and second applicants could have obtained an abortion on request (according to certain criteria including gestational limits) in some 30 such States. The first applicant could have obtained an abortion justified on health and well-being grounds in approximately 40 Contracting States and the second applicant could have obtained an abortion justified on well-being grounds in some 35 Contracting States. Only 3 States have more restrictive access to abortion services than in Ireland namely, a prohibition on abortion regardless of the risk to the woman’s life. Certain States have in recent years extended the grounds on which abortion can be obtained (see paragraph 112 above). Ireland is the only State which allows abortion solely where there is a risk to the life (including self-destruction) of the expectant mother. Given this consensus amongst a substantial majority of the Contracting States, it is not necessary to look further to international trends and views which the first two applicants and certain of the third parties argued also leant in favour of broader access to abortion.
236. However, the Court does not consider that this consensus decisively narrows the broad margin of appreciation of the State.
237. Of central importance is the finding in the above-cited Vo case, referred to above, that the question of when the right to life begins came within the States’ margin of appreciation because there was no European consensus on the scientific and legal definition of the beginning of life, so that it was impossible to answer the question whether the unborn was a person to be protected for the purposes of Article 2. Since the rights claimed on behalf of the foetus and those of the mother are inextricably interconnected (see the review of the Convention case law at paragraphs 75-80 in the above-cited Vo v. France [GC] judgment), the margin of appreciation accorded to a State’s protection of the unborn necessarily translates into a margin of appreciation for that State as to how it balances the conflicting rights of the mother. It follows that, even if it appears from the national laws referred to that most Contracting Parties may in their legislation have resolved those conflicting rights and interests in favour of greater legal access to abortion, this consensus cannot be a decisive factor in the Court’s examination of whether the impugned prohibition on abortion in Ireland for health and well-being reasons struck a fair balance between the conflicting rights and interests, notwithstanding an evolutive interpretation of the Convention (Tyrer v. the United Kingdom, § 31; and Vo v. France [GC], § 82, both cited above).
238. It is indeed the case that this margin of appreciation is not unlimited. The prohibition impugned by the first and second applicants must be compatible with a State’s Convention obligations and, given the Court’s responsibility under Article 19 of the Convention, the Court must supervise whether the interference constitutes a proportionate balancing of the competing interests involved (Open Door, § 68). A prohibition of abortion to protect unborn life is not therefore automatically justified under the Convention on the basis of unqualified deference to the protection of pre-natal life or on the basis that the expectant mother’s right to respect for her private life is of a lesser stature. Nor is the regulation of abortion rights solely a matter for the Contracting States, as the Government maintained relying on certain international declarations (paragraph 187 above). However, and as explained above, the Court must decide on the compatibility with Article 8 of the Convention of the Irish State’s prohibition of abortion on health and well-being grounds on the basis of the above-described fair balance test to which a broad margin of appreciation is applicable.
The Court then concluded that the interference was provided by law and pursued the legitimate aim of protecting public morals in Ireland. As to the necessity test, the Court held that the state had struck a fair balance in the cases of applicants A (an unemployed woman living in poverty with her four children living in foster care) and B (who was not prepared to become a single parent). However, in the case of applicant C a woman in remission from cancer fearing that her pregnancy would cause a relapse of the cancer), the Court found a violation of Article 8. Since her complaint related to the absence of a domestic procedure to establish whether such a risk truly existed (which would have enabled abortion), she did not have to substantiate that fear. The Court concluded that the legal procedures were insufficiently clear in practice (para. 264):

The Court considers that the uncertainty generated by the lack of legislative implementation of Article 40.3.3, and more particularly by the lack of effective and accessible procedures to establish a right to an abortion under that provision, has resulted in a striking discordance between the theoretical right to a lawful abortion in Ireland on grounds of a relevant risk to a woman’s life and the reality of its practical implementation.
Here the Court in effect chastises the slowness of the Irish executive and legislative in implementing such clarity, since for more than a decade, this lack of clarity had been noted by official institutions, such as the Constitution Review Group, in Ireland itself.

Several judges attached concurring and dissenting opinions, several of which deal with the European consensus and margin of appreciation issue. The Lithuanian government (applicant C was a Lithuanian national) and a range of other third parties were given leave to intervene in the proceedings, both pro and contra abortion.

The press release on the case can be found here. For coverage by the UK Human Rights Blog, click here. And for coverage by the Human Rights in Ireland blog, click here.

Almost as soon as it was out, this judgment was nominated for the Women´s Link Worldwide´s Gender Justice Uncovered Awards. These awards are meant to identify the best and the worst judicial decisions related to gender justice. Other ECHR judgments nominated so far are Hajduova v Slovakia, and Konstantin Markin v Russia, both highlighted earlier on this blog. To nominate or vote, click here.