OPINION:Legislation should be proposed to regulate the right to abortion
THERE HAVE been misleading claims and counterclaims concerning the implications of the European Court of Human Rights ruling for Ireland’s abortion law. However, the outcome was predictable and the decision of this court was clear.
The court reiterated two points made in previous decisions.
First, the court found that the principle underpinning Ireland’s abortion law does not violate the European Convention on Human Rights. This principle provides that a pregnancy may only be terminated where that pregnancy poses a substantial risk to a woman’s life. The court rejected the claim that a woman has a right under the convention to the termination of a pregnancy where this poses a risk to a woman’s health or wellbeing. The court has consistently rejected this claim in previous cases.
The court recognised that the 47 states to the convention hold different views about important moral values such as when life begins or ends. The court refused to find that one state’s view about these values is less or more legitimate than that of another. It upheld the sovereign right of a state to determine these values.
Second, the court found that the procedures regulating the principle underpinning Ireland’s abortion law violated the convention. These procedures require a woman to apply to court and/or consult with a doctor to determine if she is entitled to a termination of her pregnancy. The court found that these procedures are deficient.
The court has always stressed that a right must not be illusory. A right must be accessible and effective. States must provide appropriate procedures to ensure a right is accessible and effective.
Ireland is bound by the court’s decision and must adopt a procedure regulating the right to a termination. The European court upholds the sovereign right of a state to choose the procedure. There are three procedures available.
First, the Government could ask the people to vote on a constitutional amendment with legislation attached to the amendment. Such an amendment was rejected in 2002. A potential difficulty with this procedure is the need for further referendums where legislative deficiencies become apparent when the legislation is operable.
The use of this procedure also constitutes an abdication of political responsibility. The people elect politicians to legislate on behalf of the people. The politicians would, in effect, be asking the people to legislate on this issue.
Second, the Government could introduce non-statutory guidelines that provide procedures ensuring the vindication of this right. Ireland used this approach to provide civil legal aid to vindicate the convention’s right of access to courts.
Third, the Government could propose legislation vindicating this right. This procedure is optimal.
Ireland’s reputation has been significantly downgraded in the EU. The Government now has an opportunity to enhance its reputation within the Council of Europe by demonstrating our commitment to accessible and effective human rights.
Adam McAuley is lecturer in law at the School of Law and Government in Dublin City University. In July 2008, in these pages, he predicted the State would lose the abortion case