Sexual and Reproductive Health and Rights Situation Report: The European Court on Abortion

The Sexual and Reproductive Health and Rights Situation Report is a monthly column focusing on policy developments around these important rights worldwide.  This month I’m focusing on a recently-released judgment on abortion from the European Court of Human Rights, and on the importance of such decisions in the fight for reproductive justice around the world.

In mid-December the European Court of Human Rights published its ruling on a case called A, B, and C v. Ireland- first reported on GAB as a quick hit here.  The case was brought by three women who were forced to travel to England for abortion services who claimed that having to travel was an undue hardship that put their health at risk and violated their fundamental human rights.  The three plaintiffs sought abortions for different- but familiar- reasons: One was already fighting for custody of her existing child, one was at risk for ectopic pregnancy, and the third was undergoing chemotherapy.  The results of the final ruling in the case are  mixed, but point again to the importance human rights law as a tool for advancing reproductive rights, and of the ECHR and similar regional bodies worldwide.

The Ireland Ruling

The final ruling of the ECHR on the Ireland case found, according to the Feminist Majority’s release, that “the constitutional ban on abortion violates a woman’s right to adequate medical care in life-threatening situations. Nevertheless, the court maintained Ireland’s right to prohibit abortions in other circumstances.”

The court found in favor only of the plaintiff undergoing chemotherapy, and found that the country violated her rights by failing to provide the necessary health infrastructure that would have allowed her to get her life-saving abortion without going abroad.  That sounds kind of dry, but imagine undergoing chemotherapy for years, accidentally becoming pregnant, being denied the tests necessary to find out if the pregnancy threatened your life, then having to go to Canada for the abortion you need.  Talk about a violation!

The ruling will force Ireland to re-examine the law, and hopefully remove criminal sanctions for doctors who preform abortions except in very specific circumstances.  It may also pave the way for women to actually access services that are their legal right under the Irish constitution, as the decision questions the effectiveness of the set procedure a woman in Ireland would have to go through to get abortion services when her pregnancy threatens her life.

According to analysis by the Center for Reproductive Rights, the decision on A, B, and C v. Ireland is positive, but falls short.  It’s an “important step,” but what about the other two women?  ”[N]o one should have to travel outside their own country to exercise their human rights.”  As NYT Supreme Court and Law Columnist Linda Greenhouse points out, the ruling does not actually decriminalize abortion. There’s language in the ruling about the “European consensus,” but as Greenhouse points out, the Court grants Ireland a ‘special margin’ on its responsibilities under international law due to being overwhelmingly Catholic.

The ruling is already being used as a tool by activists and NGOs.  Many have released their comments heralding the decision on the third claimant, C, and condemning the ruling’s shortfalls.  The Irish Family Planning Association has called for the government to immediately respond with plans of how to address the violation, and they will continue to use the decision to push the government to meet its human rights obligations.

Other European Rulings

The ECHR has made other noteworthy rulings on abortion rights.  In the case of Tysiac v. Poland, for example, a visually-impaired Polish woman sued Poland for failure to provide access to abortion services, even though the law allows abortion in cases of risk to the pregnant woman’s health.  After being forced to carry her pregnancy to term, she lost most of the rest of her sight.  The case was resolved in her favor, and the court ruled that states have an obligation to establish mechanisms by which women can access abortion services.  The ruling was important not just for Poland, but because it set a precedent for other countries and became a useful advocacy tool for repro rights activists in countries all over Europe as they work to make it easier for women to access services.

The ECHR ruling reinforces the necessity of having effective processes in place for women to exercise their health rights.  In R.R. v. Poland, the Court found that the denial of pre-natal testing that would have given R.R. the grounds to seek a legal abortion violated her human rights.  These rulings steadily build the body of jurisprudence around abortion as a human right, and has strengthened what the EHCR called the “European consensus” that the fundamental right to choose, and to have access to services, belongs to all women simply because they are humans.

Abortion as a Human Right, Human Rights as a Tool

Abortion is protected as a fundamental human right under a number of international treaties, as well as within regional documents.  All over the world, human rights are becoming an increasingly prevalent advocacy tool for sexual rights advocates.  Two examples I’m familiar with: Arguments in favor of the decriminalization of abortion in Mexico City relied heavily on international rights, specifically the precedent set by the Paulina case, where the Inter-American Court ruled that a very young Mexican girl who became pregnant as the result of a home-intruder rape had her rights violated when she was denied an abortion- the simple agreement by the court to hear the case was a tacit acknowledgment of abortion as a right.  Likewise, advocacy for the liberalization of abortion law in Spain referenced regional human rights treaties and ECHR decisions.  Spain’s law was liberalized last year.

Here in the U.S., we’re not familiar with the language of human rights- few law schools even address international human rights law in their curricula.  But arguments based on human rights are so powerful because they’re not impugnable.  Human rights are, by definition, inalienable and intrinsic.  I believe the human rights framework is especially important for rights advocacy because the language of human rights creates the positivistic empowerment to demand fulfillment of rights rather than creating a deficit-based position of requesting favors.  We shouldn’t ask for reproductive rights, we should demand them as our due.

To keep following the legal fight for abortion rights worldwide based on powerful human rights arguments, click here to get email alerts from the Center for Reproductive Rights.  You can also get updates from the U.S.’ own regional human rights body, the Inter-American Commission on Human Rights by clicking here.

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