ABC Case in 2009

In December 2009 a case was heard in the European Court of Human Rights (ECHR), ABC v. Ireland. The plaintiffs in the case are three anonymous women (referred to as “A,” “B,” and “C”) who are challenging Ireland’s protection of the unborn. They have petitioned the Court to create a “right to abortion” in the European Convention on Human Rights (the Convention) and ask that the abortion “right” trump the right to life guaranteed in Ireland’s Constitution. Such a holding by the ECHR would be a striking departure from the European practice of leaving the resolution of such issues to the member states.

The three petitioners in the case, only named as A, B & C, 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 that the State’s abortion law violates a key article of the European Convention on Human Rights - Article 8 which says a person has the “right to respect for private and family life”.

The case is sponsored by the Irish Family Planning Association (IFPA) and the plaintiffs claim that our ban on abortion violates their human rights.

It is troubling that the ECHR entertained arguments in this case. The plaintiffs made no effort to seek review in the Irish courts even though Article 35 §1 of the Convention requires exhaustion of all domestic remedies before the ECHR hears a case.

While the Court should dismiss the case, there are signs this will not happen. For example, before the lower chamber reached a decision, the matter was referred to the Grand Chamber. This is a highly unusual development in the process of a case and a signal that the Court may be preparing to issue what it considers an “historic” decision. After all, why gather all nineteen judges just to dismiss for lack of jurisdiction?

The hearing of the case began on December 9th before the Strasbourg court’s grand chamber of 17 judges.

In the Court, the Irish Attorney General gave a strong defence of Ireland’s values and our pro-life laws, insisting that Ireland’s legal position on abortion had been endorsed in three referendums. (This was in stark contrast to the pro-abortion arguments of his office during the D case, and is most likely a result of the hundreds of complaints his office received when Youth Defence made his position at that time widely known.)

Scope of the ECHR

The article below outlines power and scope of the ECHR, the ABC case before the court, and the need for you to take immediate action.

What is the European Convention for the protection of Human Rights; and what are its powers?

The European Convention for the Protection of Human Rights and Fundamental Freedoms was signed in Rome in 1950 between the member states of the Council of Europe. This body was set up after World War II and has no organisational connection with the EU. Parliamentarians from its member states meet in the Assembly of the Council of Europe.

The Council of Europe now includes most of the 50 or so states in Europe, including such non-EU members as Russia, Ukraine, Switzerland etc. All the member states of the Council have signed up to the European Convention on Human Rights, which in turn set up the European Court of Human Rights in Strasbourg to hear cases taken under the Convention. Member state signatories of the Convention agree to abide by the judgments of the ECHR and to permit their citizens to appeal to that Court on human rights issues covered by the Convention once they have exhausted all domestic remedies.

The ECHR is an entirely different body to the EU Court - the European Court of Justice.

The Irish government incorporated the Convention on Human Rights into Irish law in 2003, which means that it should apply the judgments of the Court domestically in Ireland. However, this does not happen immediately or automatically. Sometimes a member state may ignore a judgment of the court, for the Council of Europe and its ECHR has no power to impose sanctions to enforce

However, abortion campaigners would use a judgment in favour of abortion to put pressure on the Government to comply with the ECHR’s judgment. In the 1988 Norris case, Ireland was found to be in breach of the Convention on Human Rights, because the court found that Irish laws against homosexual behaviour violated the Convention's right to privacy. In due time the Irish Government repealed those laws.

The Lisbon Treaty and the European Convention for the Protection of Human Rights

The Lisbon Treaty has created a constitutionally new European Union, and the Treaty provides that the post-Lisbon EU "shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.”

Thus the post-Lisbon European Union, the EU itself and its institutions will have agreed to abide by the judgments of the EU Court of Human Rights and can be expected to apply them to all EU States and for all EU citizens, using sanctions such as fines or other penalties to enforce these judgments if need be. This is to be a big change from the pre-Lisbon position, where there are no sanctions that might force the signatories to the European Convention to apply the ECHR’s judgments, unless they decide voluntarily to do so

It is not yet clear how the exact relationship between the two Courts will develop as regards human rights matters. The provision in the Lisbon Treaty that the EU's accession to the Human Rights Convention "shall not affect the Union's competences as defined in the Treaties", would on the face of it seem to mean that the human rights judgments of the European Court of Justice (ECJ) itself will be final and supreme, for the ECJ has the exclusive power to interpret and apply the Treaties.

Tensions may develop as regards the respective human rights competence of the two Courts, especially in the overlapping areas, but the most likely outcome would seem to be a gradual assimilation to one another of the jurisprudence of the two Courts over time, with the EU Court being the more influential because of the power and size of the EU Member States.

Of course the ECJ can also consider the Charter of Fundamental Rights, made legally binding by Lisbon and granting no specific legal protection to the child in the womb, while reiterating privacy rights.

But what about the Lisbon Treaty “guarantee” on the right to life ?

The "guarantees” negotiated by the Irish Government to win popular support for the Lisbon Treaty in the re-run of the referendum do not change that Treaty one iota, nor are they referred to in the constitutional amendment that accompanied Ireland’s vote on the Treaty.

Equally, if the promised future EU Protocol on the right-to-life does not change anything in the Lisbon Treaty, it seems essentially pointless and redundant, and to be designed to pretend to Irish voters in the second Lisbon referendum that something significant had in fact been obtained. The fact remains that despite the "guarantees", it is the EU Court of Justice (ECJ) that will remain as the sole interpreter of the fundamental rights and provisions of the EU Treaties.

Do the “guarantees” affect the European Court of Human Rights and the ABC case?

The "guarantees" will not, of course, affect the judgments of the European Court of Human Rights (ECHR), since, as explained above, it is not an EU body. However, the ECJ might decide to take the judgments of that Court into account in its own judgments, as it has done in the past, and that is entirely a matter at the discretion of the ECJ

Previous judgments made by the ECHR include the ruling in Tysiac v Poland case in 2007, where the court ignored the evidence of eight medical experts where a woman who claimed that a ‘therapeutic’ abortion could have saved her eyesight. Youth Defence said that this gave rise to doubts on the impartiality of the court’s judgments in relation to the right-to-life.

In the current case the applicants A, B and C are two female Irish nationals and one female Lithuanian national, resident in Ireland, who are represented by an IFPA lawyer.

They argue that they should have been entitled to abort their baby in three separate circumstances pertaining to them: a) because the risk of an ectopic pregnancy had increased when the morning-after-pill had failed; b) because the woman had received chemotherapy for cancer; and c) because the woman had already had children in care as she was unable to cope.

A Life Institute spokesperson said outside the court that: “The IFPA are deliberately confusing legitimate medical treatment with abortion.” She pointed out that the medical treatment for an ectopic pregnancy is a perfectly legitimate procedure in Ireland. “This treatment is the removal of an ectopic pregnancy where the baby may die, but the baby is not deliberately killed. It’s not a surgical abortion which deliberately and violently ends the unborn child’s life,” she said, adding that “abortion is not healthcare, it is the denial of the most basic human right; the right to life.”

The Court ruled that by eleven votes to six, that there had been no violation of Article 8 (right to private and family life) of the European Convention on Human Rights in respect of the first and the second applicants (A and B), and unanimously, that there had been a violation of Article 8 respect of the third applicant (C).

H_Judges_ABCCase - Judges on the ABC Case