This article will analyze one of the most famous cases of the ECHR regarding the right to abortion. This case is the A, B, C v Ireland, 2010.
Abortion was prohibited under Irish criminal law by sections 58 and 59 of the Offences Against the Person Act 1861. A referendum held in 1983 resulted in the adoption of Article 40.3.3 of the Irish Constitution (the Eighth Amendment), whereby the State acknowledged the right to life of the unborn and, with due regard to the equal right to life of the mother, guaranteed to respect the mother in national laws.
“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.”
That provision was interpreted by the Supreme Court in its seminal judgment in the X case in 1992 as meaning that abortion in Ireland was lawful if there was a real and substantial risk to the life of the mother, which could only be avoided by the termination of her pregnancy. The Supreme Court stated at the time that there was not enacted legislation regulating that constitutionally guaranteed right. A further referendum in 1992 resulted in the Thirteenth and Fourteenth Amendments to the Constitution, which lifted a previously existing ban on traveling abroad for an abortion and allowed information about lawfully available abortions abroad to be disseminated in Ireland.
The three applicants involved in the A, B, C case had all obtained abortions in the UK.
All three women ultimately obtained abortions, but they did so only by temporarily leaving their own country. Indeed, all of them complained about the violation of Article 8 ECHR (right to private and family life) because of the interference of the State in their decision of abortion.
The first applicant was an unemployed single mother. Her four young children were in foster care, and she feared that having another child would jeopardize her chances of regaining custody after sustained efforts on her part to overcome an alcohol-related problem.
The second applicant did not wish to become a single parent. Although she had also received medical advice that she was at risk of an ectopic pregnancy, that risk had been discounted before she had the abortion.
The third applicant, a cancer patient, was unable to find a doctor willing to advise whether her life would be at risk if she continued to term or how the fetus might have been affected by contraindicated medical tests she had undergone before discovering she was pregnant.
As a result of the restrictions in Ireland, all three applicants were forced to seek an abortion in a private clinic in England in what they described as an unnecessarily expensive, complicated, and traumatic procedure.
FINDINGS OF THE COURT
The Court, in its findings, stated that the case of the first two applicants was different than the one of the third applicant because their life and the life of the fetus were not in danger. Indeed, the Court found a violation in respect of the third applicant.
For the first and second applicant the Court stated that having regard to the broad concept of private life within the meaning of Article 8, including the right to personal autonomy and to physical and psychological integrity, the two applicants were subject to interference under Article 8. However, that interference was in accordance with the law and pursued the legitimate aim of protecting the profound moral values of a majority of the Irish people, as reflected in the 1983 referendum.
Furthermore, the Court found that there was a broad margin of appreciation when it comes to abortion.
The margin of appreciation is a doctrine that the European Court of Human Rights has developed when considering whether a member state has breached the Convention. It means that a member state is permitted a degree of discretion, subject to Strasbourg supervision, when it takes legislative, administrative, or judicial action in the area of a Convention right. The doctrine allows the Court to consider that the Convention will be interpreted differently in different member states, given their divergent legal and cultural traditions. As the Council of Europe has observed, the margin of appreciation gives the Court the necessary flexibility to balance the sovereignty of member states with their obligations under the Convention.
The margin of appreciation was crucial in this case as the Court acknowledged that “the acute sensitivity of the moral and ethical issues raised by the question of abortion” tended to suggest that a wide margin would be appropriate.
Given the acute sensitivity of the moral and ethical issues raised, a broad margin of appreciation was applicable so, the Irish State should determine whether a fair balance had been struck between the protection accorded under Irish law to the right to life of the unborn and the conflicting rights of the first and second applicants to respect for their private lives. Although there was a consensus amongst a substantial majority of the Contracting States towards allowing abortion on broader grounds than those accorded under Irish law, that consensus did not decisively narrow the broad margin of appreciation of the State. Since there was no European consensus on the scientific and legal definition of the beginning of life and since the rights claimed on behalf of the fetus and those of the mother were inextricably interconnected, the margin of appreciation accorded to the State as regards how it protected the unborn necessarily translated into a margin of appreciation as to how it balanced the conflicting rights of the mother.
Indeed, the Court concluded that there was no violation with respect to the first and second applicants.
CONCLUSION
The question of striking a balance between the protection of the fetus and respect for a pregnant woman’s self-determination and even health is an issue on which a wide margin of appreciation continues to be given to states. Even if there is a European consensus that the balance should fall in favor of the woman, at least when her health or well-being is at stake, or at the early stages of the pregnancy.
The main problem in this case was the margin of appreciation doctrine, which limits the ECHR when it is convenient for the State.
Measures that limit human rights and freedoms have to serve a legitimate aim but also need to be necessary in a democratic society and to be proportional (well-balanced). A wide margin of appreciation (that is, states’ regulatory discretion) in the Context of abortion laws has, for years, been treated as an irrefutable Strasbourg dogma.
The use of the margin of appreciation when it comes to abortion is disproportionate as there is a European consensus that prevails upon European standards.
Abortion cases demand a heightened standard of judicial scrutiny in order to accord equal value to women’s lives and their rights.
Bibliography
Harris D., O’Boyle, M. Bates, E, and Buckley, C. Law of the European Convention on Human Rights (Oxford: Oxford University Press, 2014), pp. 505–520
Kapelańska-Pręgowska, J. The scales of the European Court of Human Rights: abortion restriction in Poland, the European consensus, and the state’s margin of appreciation. (2021, December 7). Health and Human Rights Journal. https://www.hhrjournal.org/2021/11/the-scales-of-the-european-court-of-human-rights-abortion-restriction-in-poland-the-european-consensus-and-the-states-margin-of-appreciation/
Ryan, C. (2013). THE MARGIN OF APPRECIATION IN A, B AND C v IRELAND: A DISPROPORTIONATE RESPONSE TO THE VIOLATION OF WOMEN’S REPRODUCTIVE FREEDOM. Journal of Law and Jurisprudence. https://doi.org/10.14324/111.2052-1871.024
European Court of Human Rights. ECHR 2011/7 Case of A, B and C v. Ireland, 16 December 2010, no. 25579/05 (Grand Chamber)
