A. B. C. Irish abortion case: No human right to abortion under the Convention, says the European Court of Human Rights

(Strasbourg, France) – The European Centre for Law and Justice (ECLJ) cautiously welcomes the Grand Chamber of the European Court of Human Rights’ decision in the closely-watched A.B.C. v. Ireland case (Case no 25579/05).  ECHR Grand Chamber judgment

The European Court of Human Rights (ECHR) has decided there is “no human right to abortion” stemming from the European Convention and that the Irish Constitutional prohibition of abortion respects the provisions of the European Convention on Human Rights.

Refusing to recognize a human right to abortion, the Court unambiguously made clear that "Article 8 cannot, accordingly, be interpreted as conferring a right to abortion”. (§ 214)

The ECLJ applauds the recognition by the ECHR of the existence of the “right to life of the unborn”. (§233) but rejects the assumption that the ECHR has that the Irish constitution does allow abortion.

The ECLJ, which is a third party in this case, filed an amicus brief before the Court stating that member States have the sovereign authority to prohibit abortion as a competency stemming from their original responsibility to protect the right to life.  (The Court summarized our observations in §§ 196 to 201)

The ECLJ shares the Court holding “that the prohibition in Ireland of abortion for health and well-being reasons, based as it is on the profound moral views of the Irish people as to the nature of life and as to the consequent protection to be accorded to the right to life of the unborn” doesn’t exceed the margin of appreciation accorded in that respect to the Irish State. (§ 241).

The Court’s only limitation to the fundamental right of the States to protect the right to life of the unborn appears in the following assumption: “A prohibition of abortion to protect unborn life is not 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”. (§238) It means that a prohibition of abortion to protect unborn life is, in principle, justified under the Convention.

Even considering the broad European consensus on abortion, the Court considers that it doesn’t limit the sovereign right of Ireland to prohibit abortion, because of “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” (§ 233)

Apart from those positive holdings affirming that there is no right to abortion, the ECLJ must strongly reject the erroneous assumption of the ECHR of the existing of a “lawful abortion in Ireland in accordance with Article 40.3.3 of the Constitution” Article 40.3.3, adopted by a referendum held in 1983, reads as follows and doesn’t recognize any right to abortion : “The State 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 Court’s interpretation of article 40.3.3, may lead to a forced recognition of a right to abortion.

The Court, after rejecting the complaints of two of the tree applicants, has focused on the specific situation of the third one whose fundamental concern was “the lack of accessible and effective procedures in Ireland to allow her to establish her qualification for a lawful abortion in Ireland (regarding the implementation of Article 40.3.3 of the Constitution)”. This applicant was in remission from cancer. “She was unclear and concerned about the risks to her health and life and to the foetus if she continued to term and claimed she could not obtain clear advice. She therefore decided to have an abortion in the UK.” On her specific situation, the Court concludes, based on its interpretation of article 40.3.3, of the Constitution that the “authorities failed to comply with their positive obligation to secure to the third applicant effective respect for her private life by reason of the absence of any implementing legislative or regulatory regime providing an accessible and effective procedure by which the third applicant could have established whether she qualified for a lawful abortion in Ireland in accordance with Article 40.3.3 of the Constitution.  Accordingly, the Court finds that there has been a violation of Article 8 of the Convention.” (§ 267-268).

For the ECLJ, it has to remain very clear that the authentic interpretation of the Irish Constitution belongs only to the Irish Constitutional Court, not to the ECHR.

The ECLJ, which is a third party in this case, filed an amicus brief in November 2008 along with two other pro-life organizations. You can read the amicus brief here. In October 2009, the ECLJ published a new legal analysis insisting on the primacy of the right to life within human rights and on the need of respect for national sovereignty. You can read the legal analysis here.

Dr Grégor Puppinck, Director of the ECLJ, welcomes the acknowledgment from the Court that it has no competency to create a new so called "right to abortion."  In fact, the European Convention for the Protection of Human Rights and Fundamental Freedoms can not be used to weaken protections afforded to human life guaranteed by a Member State. The Convention provides a floor of protection, not a ceiling; therefore the Court can only supervise if restrictions prescribed by a State to the protection of human life are not abusive.

In its written observations, the ECLJ recalled that “the natural purpose and duty of the State to protect the life of its people; the people, consequently, hold the right to have their lives protected by the State. The reciprocity between people’s rights and the duty of the State in the field of life and security is traditionally seen as the foundation of public society; moreover, it is the foundation of State authority and legitimacy. Therefore, the authority to prescribe the protection of the right to life belongs originally to the State and is exercised within the framework of its sovereignty.”

ECLJ representatives were present during the hearing at the ECHR on December 9th, 2009

Court Grand Chamber judgment
You can read the second ECLJ legal analysis here.
You can read the ECLJ amicus brief here.
You can read the ECHR official "Statement of Facts" here.

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