ABC v. Ireland

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I spent the feast of the Immaculate Conception in Strasbourg, France this year, consulting on a case before the European Court of Human Rights (ECHR), ABC v. Ireland. The plaintiffs in the case are three anonymous women (referred to as “A,” “B,” and “C”) who are challenging Ireland’s protection of the unborn. They have petitioned the Court to create a “right to abortion” in the European Convention on Human Rights (the Convention) and ask that the abortion “right” trump the right to life guaranteed in Ireland’s Constitution. Such a holding by the ECHR would be a striking departure from the European practice of leaving the resolution of such issues to the member states.

As oral arguments began the next day, December 9, I couldn’t help reflecting upon the significance of the case. Strasbourg is, after all, one of the two main cities for the European institutions; not only is the Council of Europe (and its ECHR) situated there, but the European Parliament meets there one week per month in an architectural monstrosity across the river (it meets in Brussels the other three weeks each month).

Both institutions, the Council of Europe and the EU, fly the distinctive “European flag.” Originally adopted on the feast of the Immaculate Conception in 1955 by the Council of Europe, it is no coincidence that the circle of twelve stars set on a backdrop of blue on the flag brings to mind Revelation 12: 1, “And a great sign appeared in heaven: A woman clothed with the sun, and the moon under her feet and on her head a crown of twelve stars.” Arsène Heitz, designer of the flag, acknowledged late in life that this Scripture passage about Mary was his inspiration.

Fifty-four years and a day later, the flag was present at the ECHR where representatives of the Irish government defended their law. Just as Revelation depicts Mary as protector of the child in her womb, the Irish law they defend is a protection of the unborn. Through several national referenda, the people of the Republic of Ireland voted for the measure that protects the right to life of its unborn members, now Section 40.3.3 of their Constitution.

It is troubling that the ECHR entertained arguments in this case. The plaintiffs made no effort to seek review in the Irish courts even though Article 35 §1 of the Convention requires exhaustion of all domestic remedies before the ECHR hears a case.

While the Court should dismiss the case, there are signs this will not happen. For example, before the lower chamber reached a decision, the matter was referred to the Grand Chamber. This is a highly unusual development in the process of a case and a signal that the Court may be preparing to issue what it considers an “historic” decision. After all, why gather all nineteen judges just to dismiss for lack of jurisdiction?

A 2007 case, Tysiac v. Poland, indicated that the Court may be heading down this activist path towards creating “a right to abortion” under the Convention. In his dissent, Judge Xavier Borrego Borrego sharply criticized the majority opinion for usurping legislative power and running counter to its own case-law in its approach and conclusions. The Court could use this case as an occasion to limit Tysiac to its facts.

An official press release by the ECHR about ABC v. Ireland adds to the concern that what it is about to do is not limit Tysiac but issue another activist opinion. It notes each pregnancy was “unintended,” a proposition that has not been proved and would be of little legal relevance if it were, but one which pro-abortionists often use to justify legal abortion.

Thus, it is possible ABC v. Ireland could become the Roe v. Wade of Europe, where a court comes with a novel interpretation of a governing legal document (the Convention) to create a “right” to abortion, and then impose it upon states (Ireland) who disagree. Yet, should the Court impinge on the sovereignty of Ireland, how will Ireland respond? It was refreshing to see, as I exited the Court, pro-life protestors, young people from Ireland standing up for the right to life of the unborn. It is not inconceivable that Ireland could denounce a pro-abortion decision and the Court, and even withdraw from the Council.

What would the reaction of the rest of Europe be to an activist decision? An ECHR decision last month, Lautsi v. Italy, prohibiting Italian classrooms from displaying a crucifix, has already caused unrest and protests. Another overreaching opinion could be the demise of the ECHR. And that would be an ironic end to a project begun by Christian statesmen, under the flag of Mary, to ensure peace and human rights, and to unite Europe.

William Saunders is Senior Vice President of Legal Affairs at Americans United for Life. A graduate of the Harvard Law School, he writes frequently on a wide variety of legal and policy issues.