15 December 2011

Fertility and Privacy

'A, B and C v. Ireland: Europe’s Roe v Wade Still Has to Wait' ( Oxford Student Legal Studies Paper No. 14/2011) by Paolo Ronchi asks -
Does the European Convention of Human Rights (ECHR) include the right to abortion? Is there ECHR obligation for Member States to legalise or de-penalise abortion? Can the right to privacy enshrined in Art. 8 ECHR be interpreted as guaranteeing a right to abortion? The European Court of Human Rights (ECtHR) has never before had the occasion to rule directly on these issues. A Grand Chamber of the ECtHR has held 11–6 in A, B, and C v Ireland (application no.25579/05), final judgment 16 December 2010, that the ECHR plainly does not confer a right to abortion.
Ronchi comments that
The issue of balancing the right to life of the foetus against the rights of the mother was for the Grand Chamber strictly connected to the legal definition of the beginning of life, on which subject little consensus obtained, the effect of which must be a broad margin of appreciation. Consequently, and because of the supposed connection identified by the Grand Chamber between the two issues, this wide margin with respect to the definition “translates into a [wide] margin of appreciation for that State as to how it balances the conflicting rights of the mother” (at [237]).

The Court proceeded to the nature of the balancing carried out by Irish authorities between the applicants’ right to respect for their private lives and the rights of the foetus: given the lawful possibility accorded to pregnant women to get information on all options available, including abortion abroad, and to travel to another State to do so, the Grand Chamber did not consider the restriction on permitted grounds for lawful abortion to exceed the Irish margin of appreciation. The majority thus gave the Irish policy its imprimatur to the Irish “anywhere but here” policy.

In contrast to their division concerning the cases of A and B, the Grand Chamber agreed with unanimity on a violation of C’s right to privacy: her circumstances potentially fell into the exceptional category of abortion lawful in Ireland—abortion performed on the grounds of risk to the life of the mother. The Court earlier, in Airey v Ireland 2 E.H.R.R. (1979) 305 at [32], had held that Art.8 not only has a negative aspect, but also a positive one, imposing on the State positive obligations to ensure its effective respect. The Court considered it highly relevant that no effective legislative implementation of this article had followed since its approval in 1983. This uncertainty was compounded by the fault of modification of the Offences Against the Person Act 1861, which still was in force with its absolute prohibitions, and vague and ambiguous medical guidelines. The former contributed “to the lack of certainty for a woman seeking a lawful abortion in Ireland”; the latter did not provide “any relevant precision as to the criteria by which a doctor is to assess that risk” (at [253]).

This amounted, therefore, to a failure by Ireland to comply with its positive obligation to protect C’s right to private life. The Grand Chamber was quite terse on this point: once the State recognizes a right in its Constitution, as was the case with Ireland, it must not only respect it ostensibly, but also protect and fulfil it effectively. Though not quoted directly by the grand Chamber, the now classic statement in Airey v Ireland at [24] that “the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective”, seems to have leavened this part of the decision.
He concludes that -
after Tysiac v Poland 45 E.H.R.R. (2007) 42, extensively quoted in A, B and C, where the Court had come very close to recognising a Convention right to abortion, it was thought by many that Strasbourg was champing at the bit to make just that move. In point of fact, the Court in A, B and C held that “legislation regulating the interruption of pregnancy touches upon the sphere of private life”, which included “the right to personal autonomy, personal development and to establish and develop relationships with other human beings and the outside world” as well as a “person’s physical and psychological integrity” (at [106–07]). It would be a dull ear that did not detect how akin this reasoning is to that of Blackmun J’s majority opinion in Roe v Wade (at [152–53] of Roe). The Strasbourg Court was, however, not minded to interpret in A, B, and C the right to privacy as guaranteeing a right to abortion; not even the minority inclined to that view. The hopes of those waiting for a European Roe v Wade were, in other words, dashed.