How the Council of Europe is imposing abortion on Ireland and Poland

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