Momentous ECHR abortion judgment impinges upon member-state autonomy

Gerolf Hagens [Teamleider, Kaveity and Kaveity]: "On November 4th, 1950 the European Convention on Human Rights was brought to life; 13 countries (including Ireland, the United Kingdom, Greece and the Netherlands) signed the convention in Rome. Over time, 47 countries have joined the Council of Europe, which promotes human rights and coordinates the proper application of the European Convention on Human Rights. In the Convention, the right to life is mentioned several times, as in article 2, which provides that everyone's life shall be protected by law, and in article 8, which provides a right to respect for one's "private and family life, his home and his correspondence" Whereas Article 2 refers to life in its formal sense (i.e. all have the right to live, and the taking of another's life is prohibited except in certain circumstances), Article 8 is about life in its material sense (i.e. certain parts of the quality of life).

The scope of the right to life under article 2 has produced a lot of debate as well as case law. This is due to the variety of cultures that can be found in Europe, which consists of highly religious countries (e.g., Ireland, Greece and Poland), and more secular states such as The Netherlands or France. The former group are very reluctant to make changes to their religious identities, and consequently exercise very rigid policy when it comes to abortion or euthanasia.

It was never explicitly stated that abortion or euthanasia fell within the scope of article 2; in the 1950's these subjects were controversial in several of the founding countries of the European Convention. Until now, the member states had never agreed upon a solution, nor had the court ever widened the scope of the right to life under this article. The court's silence, however, does not indicate a deference to national governments on these controversial matters. On the contrary, the court has found different ways to create a (be it limited) right to abortion, framing a baby's right to life as something which is weighed against the mother's article 8 rights, which involve her personal autonomy and physical and psychological integrity.

This may still not be a problem; article 8 does not give an absolute right to abortion. So, if national law denies abortion, it can only be allowed if the article's limitation grounds are fulfilled. This means two questions have to be answered:

(1)Is the limitation necessary in a democratic society? and

(2)Is there a legitimate goal for this limitation?

The first point is mainly for the national governments to decide. The European Court accepts that is not equipped to decide whether restriction is necessary. Only in rare cases where it is obvious that a certain restrictive measure is not necessary, the European court will conclude there is a violation. In the recent case against Ireland this was one of the main arguments; the applicants claimed that there was no democratic necessity for the abortion ban. The court did not share this point of view, refusing to stray from the margin of appreciation principle.

The second question is a bigger problem; public security can hardly be called a legitimate justification of the restriction of abortion. However, the protection of morality is a potential ground for limitation (as can be seen in the Open Doors judgment of the European Court, where it says that profound moral values could justify restriction). So too is the protection of the rights of others (an unborn child could have the right to life under article 2 of the convention, and so a member state could protect that right by restricting abortion).

Thus there is still room to limit abortion. But while the judgment was considered to widen the scope of articles 2 and 8, in reality not much has changed. And this is, in my eyes, the appropriate solution. As in every country, it has taken some time for abortion and euthanasia to be accepted. Countries that have cultural barriers should not be forced to change their morals, especially when there are alternatives for people that do not want to wait until these morals change or break down."


This article was prepared for publication by Yuriy Vilner, an associate editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

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