by Family Research Council
December 15, 2010
Tomorrow, the Council of Europe, European Court of Human Rights will issue its opinion on a pivotal abortion case, ABC v. Ireland. The case has been dubbed the Roe v. Wade of Europe, and will have significant bearing on abortion law internationally. The plaintiffs are three Irish women who claim that Irelands abortion law the procedure is illegal unless the mothers life is at risk placed their well being and health in jeopardy in short because they had to travel abroad to abort their babies.
In the words of one person involved in the case, ABC v. Ireland should be an open and shut win for the Irish government. One would think that the Court would not even entertain oral arguments in the ABC case, because it has to do with a sovereign states constitutional provisions on a subject on which it is permitted to do as it wishes under legal precedent from the European Court of Human Rights. Serious questions also exist regarding basic applicability/appropriateness given the fact that the plaintiffs sought no form of domestic remedy prior to bringing this case to the European Court of Human Rights.
In November, 2008, FRC joined with the Alliance Defense Fund and other pro-life, pro-family groups to provide written observations to the court. Below are short excerpts from this document and here is the link for the full statement:
The Court Must Scrutinise Domestic Remedies
2. Article 35 of the Convention requires an applicant to exhaust domestic
remedies, and Article 13 entitles applicants to a basic procedure for trying to
protect their rights. Irish law and practice establishes not only the existence of
remedies sufficient to satisfy Article 13, but a high burden of exhaustion.
3. Under Article 35(1) therefore, the Court must decide whether the
Applicant, under the collective circumstances of the case, did everything they
could reasonably be expected to do to exhaust domestic remedies.1
Member States Have Sovereignty to Protect the Right to Life
7. Irelands sovereign right to determine when life begins and to determine
the appropriate protections therein is based on the paramount importance of the
right to life affirmed in Article 2, which outweighs other Convention rights. This
Court recognised that other rights, such as the right to privacy and bodily integrity
within the context of pregnancy, are not absolute and must be analysed in
conjunction with the rights of the unborn to life and the rights of States to
determine their own definition of when life begins and how to protect unborn
children as a result.6
11. The principle of respect for national sovereignty, and not the erosion
thereof, forms the basis for Convention rights themselves, because those rights
stemmed from the treaty obligations undertaken by the High Contracting parties.
For any organ of the Council of Europe to hold that Irelands laws protecting life
must be liberalised would create a new Convention right to which Ireland never
acceded, and would place obligations on Ireland to which it never became party.