We are pleased to welcome the latest in our series of guest responses to the judgment in A, B & C v. Ireland. This contribution is by Dr. Ruth Fletcher, of the School of Law at Keele University. Ruth is the author of Reproductive Life: Governing Abortion in Transnational Times (Ashgate, due 2011)

As Mairead has noted, there’s an awful lot to say about the decision in ABC.  For now I want to focus on a few aspects of the judgement that I find particularly troubling.  In deciding that A and B’s Article 8 rights had not been violated, the majority judgement gives a lot of weight, too much I’d say, to a descriptive conception of public morality.  It gives very little weight to health and well-being as, to use Convention language, significant aspects of an individual’s existence.  The majority also marginalises the role of consensus on human rights standards among contracting states.  Finally, in finding that recognition of the right to travel abroad is sufficient state protection of interests which may conflict with the interest in foetal life, the Court seems to conflate issues of jurisdiction and issues of health protection.

To recap, the Court found that the rights of A and B had not been violated because the prohibition of abortion in Ireland for health and well-being reasons struck a fair balance between the rights of A and B and the rights invoked on behalf of the unborn (para 241).  A and B had argued that the failure to permit abortion in circumstances where pregnancy posed a threat to women’s health and well-being was a disproportionate restriction of their right to private life under Article 8.  The government defended the abortion prohibition on the grounds that it fell within state discretion (the ‘margin of appreciation’) and Ireland was entitled to limit the right to private life by reference to public morals which sought to protect the unborn.  The Court accepted that the abortion restriction in Ireland amounted to an interference with A and B’s rights.  But it held that the interference was justifiable under Article 8(2) because it was ‘necessary and proportionate in a democratic society’, that is that it accommodated other democratic interests to a fair extent.  I think that there are problems with the Court’s assessment for the following reasons.

1. Protection of morals

The question of whether public morality should be legally permitted to limit individual rights in the absence of proven harm to others is a vexed and well-worn jurisprudential issue.  One of the debates concerns the distinction between descriptive morality (the collective moral views held by a group of people at a given time) and critical morality (principle-based morality whose application to particular contexts has to be argued for).  The Court has clearly gone for a more descriptive version of public morality and identified certain legal outcomes as evidence that public morality endorses protection of foetal life.  It was open to the Court to adopt a more critical conception of public morality and assess the moral viewpoints informing the legal outcomes more robustly.  Even if we accept that foetal life has some kind of moral status, it does not follow that sustaining a particular foetal life against a woman’s better judgement is the morally right thing to do in all non life-threatening circumstances.

If the Court is going to limit individual rights by reference to the protection of morals, as Article 8(2) permits it to do, it should really have interrogated more fully the kind of protection it was going to give.  And if it was going to invoke the legally endorsed moral views of the Irish people against individual rights this should have been on relatively narrow grounds given the moral significance of individual rights.  But in ABC, the Court actually broadens the protection of morals (in the descriptive sense) as a ground for limiting individual rights.

2. Health and well-being

Normally, as the Court notes, the state’s discretion to protect morals would be narrowed if “a particularly important facet of an individual’s existence or identity is at stake” (para 232).  This means that one of the questions before the Court was whether health and well-being were such important facets.  But the Court failed to answer this question directly, and instead went on to say that because there was no consensus on the importance of ‘the facet’ at stake, the discretion should not be narrowed on this ground.  This is a poor piece of legal reasoning on the Court’s part, as the dissent notes.  It had found that there was no consensus on the question of when life should acquire legal protection, not on the question of whether health and well-being were particularly important facets of an individual’s existence or identity.  The legal status of embryos and foetuses is clearly a distinct issue from the legal status of women’s health and well-being and the Court’s failure to distinguish them weakens the force of its reasoning.  Deciding the best course of action in a particular set of circumstances requires weighing the interests at stake. Failure to clarify the relevant interests is going to hamper good decision-making in this regard.

3. Consensus

In principle, the state’s discretion to protect foetal life could have been narrowed by reference to a consensus across the contracting states to protect the right to abortion on grounds of risk to health or well-being.  The Court accepted that there was indeed such a consensus (para 235) given so many members of the Council of Europe permitted access to abortion for health and well-being reasons.  But it found that this consensus did not narrow the state’s margin because it was not ‘a decisive factor’.  As the dissent points out, this is a worrying development in human rights reasoning.  The court has limited the capacity of consensus among contracting states to restrict the scope of the individual state’s discretion to protect morals.  As a result the Court has undermined the key role of consensus among states in building and negotiating international human rights norms.

4. Permitting travel abroad

The Court noted that the state was not allowed an unlimited discretion in protecting morals, including moral value in foetal life.  A prohibition of abortion is not automatically justified and the regulation of abortion is not solely a matter for the contracting states.  However, the Court found that Irish law did limit state protection of foetal life because it allowed women who sought abortions for reasons of health or well-being to travel abroad.  But allowing women to travel abroad is stopping one step short of an absolutist, authoritarian enforcement of protection of foetal life.  Permitting escape from the jurisdiction is a very thin endorsement of the moral interests which inform women’s abortion-seeking.  Secondly, the right to travel abroad is better understood as stemming from the limits of state authority over the cross-border movement of its residents.  It does not really say anything about the standard of the state’s provision for health and well-being within the jurisdiction.  Here the Court risks conflating jurisdictional issues with substantive ones.  The state is allowed to claim that it is meeting negative obligations to protect women’s health and well-being by relying on women’s resourcefulness to exit the jurisdiction and on the availability of independent, charitable services in other jurisdictions.

On the one hand, Ireland is granted a wide discretion in the formal defence of foetal life against individual interests and European consensus.  On the other, Ireland is allowed to rely on those individuals and European service-providers when it comes to meeting its own public obligations to protect health and well-being.  This Ireland celebrates the symbolic value of human life while it disparages the work it takes to bring those symbols into being.  But as the work of organisations like the IFPA shows, it is a vision of Ireland which is changing.  The European Court of Human Rights may not want to play a role in recognising the frustrations of ordinary individuals and civil society groups as they challenge the Irish state’s failure to protect the health and well-being of already existing people.  But the critique of the Court’s decision can play a role in turning those frustrations into socio-legal change.

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