On Wednesday, the European Court of Human Rights in Strasbourg, France, began hearing a case that has the potential to be a kind of Roe v. Wade for Europe. Three Irish women who had to travel to England for abortions are challenging their government's abortion ban, saying the expense and hardship involved constitute a violation of their human rights. Precedent suggests that the court could agree. If it does, the repercussions will go far beyond reproductive rights, raising important questions about where in Europe national sovereignty ends and international guarantees of liberty begin.
Ireland's abortion regime is paradoxical and shot through with hypocrisy. The law is draconian -- abortion is banned in all cases except when a woman's life is at stake, and is punishable by life in prison. But in 1992, the country's Supreme Court ruled that it is legal for Irish women to travel abroad for abortions, and every year, around 7,000 do, usually to England. Those challenging Ireland's abortion law argue that this uneasy compromise isn't enough and that, as Europeans, Irish women are entitled to basic reproductive rights inside their country as well as outside. In addition to abortion, their case is also about what it means to be a European.
For several years now, international courts and committees around the world have been moving toward a consensus that international law protects the right to abortion, at least in certain circumstances. In 2005, the United Nations' Human Rights Committee ruled on behalf of a 17-year-old Peruvian girl who'd been forced to carry an anencephalic fetus (one missing most of its forebrain) to term, even though it had no chance of survival outside the womb. Peru, the commission said, has "an obligation to take steps to ensure that similar violations do not occur in the future." The next year, the Inter-American Commission on Human Rights heard a case involving a 13-year-old Mexican rape victim who'd been prevented from having an abortion by state officials. The government of Mexico settled, agreeing to pay the girl $40,000 plus a stipend for her son's education.
Soon after, Colombia's Supreme Court struck down that country's abortion ban, partly on the grounds that it violated international law. "Various international treaties form the basis for the recognition and the protection of the reproductive rights of women, which derive from the protection of other fundamental rights such as the right to life, health, equality, the right to be free from discrimination, the right to liberty, bodily integrity and the right to be free from violence," ruled the court. It continued, "Sexual and reproductive rights of women have been finally recognized as human rights."
But the ruling with the most bearing on the Irish case came in the European Court of Human Rights in Strasbourg in 2007. Alicja Tysiac, a Polish mother of two, was suffering from severe myopia when she found herself pregnant for the third time. Her earlier pregnancies had been difficult -- both were delivered by Caesarean-section -- and doctors told her that she risked both blindness and a ruptured uterus if she gave birth again. Nevertheless, officials refused to authorize her abortion, and, as predicted, she lost her eyesight. The court ruled that Poland had violated her human rights, and it ordered the government to pay her 25,000 euros in reparations.
So far, all the precedents in international law have avoided a direct confrontation with the issue of whether wholesale abortion bans constitute human-rights violations. Instead, they've looked at cases in which countries had some provision for medically necessary abortion on the books but didn't apply their own laws fairly or consistently.
The plaintiffs in the Ireland case are going further, essentially asking the court to declare that Ireland's constitutional abortion ban is incompatible with European norms. They're challenging Irish law under four provisions of the European Convention on Human Rights -- Article 2, The Right to Life; Article 3, The Prohibition of Torture; Article 8, The Right to Respect for Family and Private Life; and Article 14, The Prohibition of Discrimination.
Each of the three women at the center of the case has a harrowing story. One was a poor, unmarried recovering alcoholic with four children in foster care who had recently gotten sober and was trying to get her family back. She borrowed money to travel to Britain for an abortion. On returning home, she experienced pain and bleeding but was too scared to seek follow-up care. The second woman was told that she was at risk of an ectopic pregnancy after the morning-after pill failed, and the third was a cancer victim who got pregnant while undergoing chemotherapy.
If the Court of Human Rights finds in their favor, Ireland will have to reform its law. That, in turn, could generate a serious political backlash against European integration. The court has nothing to do with the European Union -- it works under the auspices of the 47-member Council of Europe, which predates the EU. But Ireland, along with Poland and several other countries, has long worried that the EU would infringe on its sovereignty regarding religious and cultural issues. This case plays into some of the worst fears of Eurosceptics.
"Ireland has always presented itself as being a very forward-looking, modern society, and yet it's been very, very slow to change its laws on many of the things that most people would see as central parts of a forward-looking society: divorce laws, access to family planning, gay rights," says David Nolan, communications director at Catholics for Choice (and a Dublin native). "Finally, Ireland has made the right moves on almost all of those issues. Abortion is pretty much the last bastion of the old conservative Ireland." Whether the old Ireland can prevail in the new Europe remains to be seen.