Dr Grégor Puppinck. PhD, Director of the European Centre for
Law and Justice (ECLJ) has written a thought provoking article pointing out
that despite the fact that the
European Convention on Human Rights does not contain any so called right to
abortion the Convention has been deliberately manipulated to find (or
manufacture) a procedural method of
imposing abortion on both Ireland and Poland. It is decisions such as this that
bring the European Court of Human Rights into disrepute
Dr Puppinck in
his article asks:
How can a country, that refused abortion three times by
referendums, be pressured to legalize it in the name of a Convention, which
does not enshrine a right to abortion?
In Europe, Ireland is a symbol of resistance against
abortion. Nevertheless, Ireland is
on the point of giving in to the concerted pressure of the Council of Europe
and the pro-abortion lobbies.
Irish people have always been firmly opposed to abortion. Since the 1980s, they have
rejected the legalization of abortion three times, while affording equal
constitutional protection to the life of the unborn child and that of the
mother. Abortion is therefore
always prohibited, except when doctors consider it necessary to save the life
of the mother.
However, the Council of Europe is at the heart of a campaign
aiming to impose abortion ‘from the top’ onto people who refused it ‘from the
bottom’ three times, by referendums in 1983, 1992 and 2002.
It is to be noted that the Council of Europe was created to
defend democracy and human rights.
The European Court of Human Rights is part of the Council of
Europe. Its role is to ensure the
observance, by member States, of human rights and fundamental freedoms enshrined
in the European Convention on Human Rights. States should abide by the judgments decided against
them by the Court. States are free
to choose the most appropriate means to put right the violation found by the
Court; and they are not required to adopt the various means possibly suggested
by the Court in its judgments.
This execution of judgments is placed under the supervision of the
Committee of Ministers, namely the ambassadors of the 47 Member States.
On the 16th December 2010, in the A., B. and C. v. Ireland
case, whereas there is no right to abortion under the Convention, the Court
condemned Ireland, considering that its legislation on abortion is not clear,
as it did not allow a pregnant woman, who wanted to have an abortion, to know
whether she qualified for an abortion according to the exception (to save the
life of the mother). That woman,
having previously suffered from cancer, feared that the pregnancy would
adversely affect her health.
Thinking that she would not be granted the medical permission for an
abortion, she travelled to England where she underwent an abortion.
The A., B. and C. v. Ireland and the Tysiac v. Poland of the
20th March 2007 (no 5410/03) cases are the landmark abortion cases against
Ireland and Poland, respectively.
In these cases, the women complained about their inability to have an
abortion particularly due to the refusal of the doctors. The two cases result from the
clash between two approaches on this issue: one, the women who demand abortion as if it were an
individual right and, two, the doctors and the State who submit abortion to
objective criteria, especially related to the life and the health of the
mother.
In these two cases, the Court tried to favour greatly the
expression and the freedom of the women, without directly confronting the
State’s right to submit abortion to strict conditions. To that end, the Court stated that if
the State decides to authorize abortion, even exceptionally, it should create a
coherent legal framework and a procedure allowing women to establish
effectively their ‘right’ to abortion.
Thus, abortion is not imposed directly on Ireland and Poland, but by the
peripheral way of the procedural obligations, which guarantee not a substantial
right to abortion, but a procedural right of knowing whether one fulfils the
right to access to an abortion.
This procedural approach obliges Ireland only to ‘clarify’ the concrete
conditions of access to abortion; in actual practice, however, it goes far
beyond that obligation. This result
is achieved while recognizing the absence of a right to abortion under the
European Convention on Human Rights, and without its being necessary for the
Court to comment on the prohibition in principle of abortion in Irish law. In order to impose this procedural
obligation, it suffices to affirm, starting from an exception from the
prohibition on the ground of danger to the life of the mother, that there is a
‘right’ to abortion and that this ‘right’ falls within the scope of the
Convention.
In order to execute the judgments as the Court recommends (a
recommendation which is not compulsory), Ireland[1] and Poland will institute a
decision-making mechanism to which women wishing to have an abortion will
address their demands. Ireland
will probably follow the example of Poland, which in order to carry out the
Tysiac v. Poland judgment established a ‘committee of experts’ in charge of
deciding on a case by case basis whether the conditions of access to an
abortion are fulfilled. This
committee will necessarily interpret and change those conditions. The composition of this committee is
decisive and is debated within the Council of Europe: the pro-abortion
lobbies[2] would like to reduce the number of doctors on such committees in
favour of other professions and categories (lawyers, representatives of NGOs,
etc). This request was backed by
the UN Special Rapporteur for the right to health who affirms that ‘a
commission composed exclusively of health professionals presents a structural
flaw which is detrimental to its impartiality’[3]. This issue is important, as doctors have a scientific,
objective and concrete approach to the causes justifying a possible
abortion. By contrast, lawyers and
political organizations view abortion under the abstract angle of individual
freedoms. What is at stake in the
debate on the composition of those committees is the definition of the nature
of abortion; on one side it is considered from a concrete and medical point of
view and, on the other side, from an abstract point of view and as an
individual freedom. If abortion is
a freedom, its exercise inevitably clashes with the doctors’ assessment which
is perceived as an illegitimate interference. This confrontation is stronger when the doctors invoke their
freedom of conscience to refuse to carry out an abortion.
Moreover, entrusting a committee with a decision to
authorize an abortion makes this decision collective, dissolving the moral and
legal responsibility of the decision into the entire committee.
The decisions of this committee should be timely, reasoned
and in writing, to be challenged in the court system. Thus, the final decision to authorize abortion will belong
no longer to the doctors or the ‘committee of experts’, but to the judge who
will ultimately interpret the criteria for access to abortion. At present, no procedure has been
proposed to challenge in the courts a decision authorizing abortion In practice, only a decision of
refusal can go before the courts.
Will the unborn child have a lawyer to represent and defend him/her in
this committee? There are no
safeguards provided against the abusive interpretation by this committee of the
legal conditions for access to abortion.
However, the pressure to allow for the legalization of abortion is very
strong, especially from the European and international institutions[4].
Thus, the final interpretative power of the conditions for
access to abortion will be transferred to the judicial power and ultimately to
the European Court of Human Rights.
With such a mechanism, the European Court would soon be called on to
decide on the reasons for decisions of refusal of those committees. This would be a new opportunity
to advance the right to abortion in Ireland. Ultimately, the control of the framework of abortion is
taken away from the legislator and to the doctor. Concerning the legislator,
the decision in principle of whether to permit or not to permit abortion will
no longer belong to the State and its citizens, because it is sufficient for
the European Court to declare that there is actually a ‘right to abortion’ in
Ireland, in order to impose this as a new and authentic interpretation of the
Irish Constitution. As to the
doctor, his power will be transferred to the judge, guarantor of the respect
for human rights.
During its 6th December 2012 meeting, the delegates to the
Committee of Ministers invited Ireland to answer the issue of the ‘general
prohibition of abortion in criminal law’, as it constitutes ‘a significant
chilling factor for women and doctors because of the risk of criminal
conviction and imprisonment’, inviting ‘the Irish authorities to expedite the
implementation of the judgment (…) as soon as possible’[5]. Further considerations on the execution
of this judgment will be resumed at the latest during the next meeting of the
Committee of Ministers in March 2013.
Some questions arise:
why such pressure on Ireland and Poland, when they are among the best
countries in the world in respect of maternal services, far ahead of France and
the United States[6]? Why transfer
to the judge the responsibility of the doctor, when assessing the medical
necessity of the abortion is the scientific responsibility of the doctor? Why is it so urgent to legalize
abortion? Why did the Committee of
Ministers of the Council of Europe decide to give ‘precedence’ to these cases,
when so many cases concerning torture, disappearances, and murders are treated
under the ordinary procedure?
Maybe because abortion profoundly defines the culture of a country – its
legalization has the value of a ritual passage into post-modernity, as it
allows the domination of individual will over life, subjectivity over
objectivity.
This process it is not ineluctable, it depends on the
strength of the political will of the Irish and Polish Governments which can
recall to the Council of Europe that their respective country has never engage
to legalize abortion by ratifying the European Convention on Human Rights,
simply because abortion is not a human right, but a derogation to the right to
life guaranteed by the European Convention on Human Rights[7].
[1] See the Report of the official group of experts
instituted by the Irish Government to propose ways of executing the judgment, published in November
2012 et accessible to this address:
http://www.dohc.ie/publications/pdf/Judgment_ABC.pdf?direct=1
[2] See the communication of the « Centre for reproductive rights » to the Committee of
Ministers of the Council of Europe
and the answer of the Polish Government DH-DD(2010)610E
[3] See the Report on Poland of the Special Rapporteur on
the right of everyone to the enjoyment of the highest attainable standard of
physical and mental health, M. Anand Grover, 20 May 2010, Human Rights Council,
document n° A/HRC/14/20/Add.3).
[4] See the Report of the Human Rights Commissioner on his visit in Ireland (26-30 November
2007), adopted on 30 April 2008 (CommDH(2008)9), the Report of the Committee
for the elimination of discrimination
against women (« CEDAW »), of the High Commissioner Office of Human
Rights of July 2005 (A/60/38(SUPP), the Periodical Report of the Human Rights
Committee on the observance of the UN Covenant on civil and political rights
(CCPR/C/IRL/CO/3, 30 July 2008).
[5] 1157DH meeting of the Ministers' Deputies 04 December
2012, Decision concerning the execution of A., B. and C. v. Ireland judgment.
[6] Trends in Maternal Mortality: 1990-2010. Estimates
Developed by WHO, UNICEF, UNFPA and the World Bank,
http://data.worldbank.org/indicator/SH.STA.MMRT (last visited 20th November
2012).
[7] The European Centre for Law and Justice submitted a
report to the Committee of Ministers on the execution of A. B. and C. v.
Ireland DD(2012)917
http://www.coe.int/t/dghl/monitoring/execution/Themes/Add_info/IRL-ai_en.asp