Significance of the Judgment of the European Court of Human Rights in A, B and C V Ireland [2010] Echr 2032 (16 December 2010)

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A B and C v Ireland can be considered a landmark case in European law. Never before had the European Court of Human Rights had the opportunity to rule directly on the issue of whether Article 8 of the European Convention on Human Rights include a right to abortion and whether the European Convention on Human rights serves as an obligation on contracting parties to legalise abortion. A Grand Chamber of the European Court of Human Rights has held in A, B and C v Ireland that the ECHR plainly does not confer a right to abortion. The judgement is itself a landmark one in the debate over abortion, but the judgement also provides an interesting insight into the doctrine of the margin of appreciation due to Ireland’s exceptional stance on the issue. The Irish Constitutional framework on abortion is based on the Eight Amendment of the constitution, which was approved by the Irish people in the 1983 referendum. The Constitution provides “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”. There is moreover legislation – the Victorian Offences against the Person Act 1881 – classifying without exception abortion as a serious criminal offence. Abortion in Ireland is illegal in all circumstances except the one established in Attorney General v X. In the case the Supreme Court interpreted the Eight Amendment as allowing only one exception to the general ban on abortion – when there is a substantial risk to life, as distinct from health of the mother. Women in Ireland by the Thirteenth and Fourteenth amendments are allowed to obtain information on lawful medical practices performed in other states and travel there to have it performed. Women are therefore allowed to have an abortion as long as it is not on Irish soil.

The applicants A, B and C were all women living in Ireland, who have travelled to the UK to receive abortions, and subsequently sued the Irish state in the European Court of Human Rights, claiming that the restrictions in, and the vagueness of, Irish Law violated their right not to be subject to degrading treatment under Article 3, right to have respect for their private lives under Article 8, their right to an effective national remedy under Article 13, and equal treatment in relation to these Convention rights under Article 14. Applicant C also alleged violation of her right to life under Article 2, as the strict prohibition of abortion presented a danger to her life. So far as Article 8 is concerned, A and B argued that their right to respect for private life has been violated due to the sever limitations on lawful abortion and their impossibility to obtain in Ireland such medical practice for health and/or well-being reasons. It is important to note the circumstances of C’s case at this point. C was undergoing chemotherapy treatment for her cancer when she became unintentionally pregnant. She then consulted several doctors, none of whom were able to tell her whether she qualified for a lawful abortion under the Irish law on grounds of risk to life as stated in the X case. She then had to travel to the UK in order to have an abortion. C argued that the non-implementation of the Eighth amendment with a clear and precise legislation regulating abortion, and the resulting ambiguity and vagueness concerning the appropriate procedure by which it can be established whether a person qualifies for a lawful abortion constituted a violation of her right to privacy under Article 8

The Court dismissed the complaints based on Articles 2-3, focusing instead on the potential violation of Article 8. To do so the Court distinguished between two levels of argumentation one general and one specific. The former concerned the argument – borrowed from the American concept of privacy as developed in Roe v Wade– that the right to privacy extends to a woman’s...
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