A decision this week by the High Court of Northern Ireland found that the jurisdiction’s abortion law is incompatible with Article 8 of the European Convention on Human Rights because it does not permit abortion in pregnancies involving either so-called “fatal foetal abnormalities” or sexual assault. Article 8 deals with the right to privacy and family life.
However, for the purposes of the law in the Republic of Ireland, the interpretation of that Article by the Northern Ireland Court is in no way relevant. Of relevance to the law south of the border is the fact that European Court of Human Rights itself has consistently held that there is no right to abortion under the European Convention on Human Rights.
The Northern Ireland case is called ‘In the matter of the law on termination of pregnancy in Northern Ireland’ (judgment available here [1]). The presiding Justice (Mr. Justice Horner) is at pains to acknowledge that under the abortion jurisprudence of the European Court there is “no right to an abortion” (his own phrase) [119]. In particular, he acknowledges that the European Court in A, B and C v. Ireland did not find that there was a right to abortion [143]. The court in that case ruled our law must make clear when a woman can and cannot have an abortion.
And yet by the end of his judgment, Horner J interprets the European Convention to find that there is a “right to an abortion” in cases of pregnancy caused by sexual assault under Article 8 [182]. Since the judge also finds that access to abortion is required by Article 8 of the European Convention in cases of so-called “fatal foetal abnormality”, he presumably considers that this too amounts to a “right to abortion” [173].
How does the Justice get from “no right to abortion” under the Convention to “a right to abortion” under the same Convention? Partly through restricting the relevance of the aforementioned A, B and C v. Ireland judgment to the (southern) Irish context.
He claims that that judgment gave Ireland a “wide margin of appreciation” when it came to deciding on the configurations of its own abortion laws (meaning that Ireland could frame abortion law as it wished since the European Convention grants it virtually unhindered discretion) [140]. The granting of this wide margin of appreciation to Ireland is due, according to the Justice, to the particular level of legal protection for the unborn under Irish law and the corresponding social support for this protection.
But this is curious. It implies that the margin of appreciation afforded to Member States is not uniform which further implies that the question of whether or not there is a right to abortion under the Convention is contingent upon the domestic law of the State under examination. In fact, in a series of judgments dealing with the right to life and abortion the European Court has held, simply, that States – across the board – have a wide margin of appreciation in these areas and that – across the board – there is no right to abortion under the Convention, including under Article 8.
Nonetheless, based on his particular interpretation of how the European Court of Human Rights understands the “margin of appreciation” doctrine, Horner J makes room for his own free moral reasoning on the implications of Article 8 of the Convention for the issue of abortion. His own moral argument extends beyond strict legal considerations anchored in jurisprudence from the European Court and is particularly evident in paras. 142, 154, 160, 162, 165 of the judgment. Here the Justice suppresses the humanity of the unborn child and adopts a pro-choice line of reasoning. This recourse to moral reasoning is discordant with the vow he makes at the outset of the judgment to undertake only a legal and not a moral analysis of the issue [7].
But while Northern Irish law, as per Horner J’s judgment, may consider that there is some kind of right to abortion under the European Convention on Human Rights, the European Court of Human Rights itself does not.