The European Court of Human Rights and Abortion: a Right or a Moral Issue?

Pagespp 67 - 91
Published date12 July 2022
Date12 July 2022
67
e European Court of Human Rights and
Abortion: a Right or a Moral Issue?
Assessing whether the recent expansion of Abortion
legislation on the Island of Ireland increases the likelihood
of the recognition of a Right to Abortion under the
ÓRLAITH MEANEY*
I. Introduction
e European Court of Human Rights (‘ECtHR’) has repeatedly determined that
there exists no right to abortion1 under the European Convention of Human Rights
(‘ECHR’ or the ‘Convention’).2 Despite most Council of Europe member states
legislating for abortion in some form, the ECtHR has continued to have regard
to a state’s alleged ‘internal consensus’ as to its ‘public morals’ regarding abortion.
Such reasoning has been adopted by the ECtHR in granting a wide margin of
appreciation to member states in relation to abortion regulation. e ECtHR case
of A, B & C v Ireland 3 (‘A, B & C ’) remains a seminal decision in this area which
demonstrates this approach.
However, the recent changes to abortion legislation in Ireland and the subsequent
changes to the abortion regime in Northern Ireland have weakened the internal
consensus argument that justied the ECtHR departing from strong European
consensus allowing for legal abortion. In May 2018, the Irish electorate voted to
repeal a 35 year-old constitutional amendment that granted equal rights to the
unborn foetus and the pregnant person.4 e outcome of the referendum brought
* Órlaith Meaney completed a Bachelor in Law & French from University College Cork and an LLM
in Public International Law – Human Rights from the University of Oslo. She is currently training
to be a solicitor in Dublin in the eld of criminal law. Any views or opinions expressed in this article
are the personal views and opinions of the author.
1 See Tysiąc v Poland App no 5410/03 (ECtHR, 20 March 2007) para 104; A, B & C v Ireland App
no 25579/05 (ECtHR, 16 December 2010) para 253.
2 Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms
(adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 221 (ECHR). As of
December 2020, the Convention has 47 states parties.
3 A, B & C (n 1).
4 e eighth amendment to the Irish Constitution inserted Art 40.3.3° which read: ‘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’. is provision was further amended in 1992 to provide that Art 40.3.3° would not limit
freedom to obtain or make available information relating to services lawfully available in another state.
68  
Irish abortion legislation in line with the majority of other Council of Europe
member states. Since the Irish referendum, Northern Ireland’s restrictive abortion
laws have also been amended, highlighting the immediate consequences of Ireland’s
changed legislation on the abortion regime of other member states.
is article therefore focuses on the combined potential consequences of the Irish
referendum and the Northern Irish legislation reform on future ECtHR abortion
jurisprudence. is analysis will place emphasis on the way in which the ECtHR
assesses consensus and the resulting margin of appreciation granted to member
states. Further, particular attention will be given to the manner in which Northern
Ireland’s abortion laws were amended, with the Supreme Court of the United
Kingdom following the ECtHR’s analysis to nd the Northern Ireland’s legislation
in breach of legislation which incorporates the ECHR.
is analysis will be set against the backdrop of recent developments in relation
to abortion rights in Poland. As Poland’s Constitutional Court recently declared
abortion in circumstances of fatal foetal abnormality to be unconstitutional, the
potential arises for a case to come before the ECtHR challenging this curtailment
of abortion rights. is article will assess the likely direction abortion jurisprudence
in the ECtHR will take if such a case comes before the court. In particular, this
discussion will consider whether the ECtHR will continue to adhere to the
approach taken in A, B & C or whether it may depart from previous determinations
and declare that a certain right to abortion does in fact now exist under the
Convention. Emphasis will be placed on how the ECtHR should determine
consensus and the necessity analysis in this hypothetical Polish case.
is article will then move to an examination of the ECtHR’s likely stance on the
discrete issue of a right to abortion in cases of fatal foetal abnormality, again, having
regard to recent developments in Northern Ireland and the fact that abortion for
this particular reason was recently rolled back in Poland. e ECtHR’s recent
determinations in relation to Article 3, as well as conclusions of the Supreme Court
of the United Kingdom will also be instructive in this regard. e declaration of
this certain right to abortion under the Convention would furthermore tip the
scales in favour of abortion being considered a right, rather than a moral issue,
within the Council of Europe.
e second section of this article will detail abortion legislation in Council of
Europe member states, with a particular emphasis on the Polish regime. e
next section will analyse how the ECtHR determines the negative obligations
under Article 8(2) and the respect for private and family life, in particular the
proportionality analysis. e doctrine of the margin of appreciation and consensus
before the ECtHR and their contribution to this necessity analysis will then be
addressed, with a discussion on European consensus and internal consensus in
the context of past and potential future abortion cases in Strasbourg. Finally, this
article will assess whether there is now potential for a declaration by the ECtHR of
a right to abortion in cases of fatal foetal abnormality.

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