Ricardo Savona
A lot of speculation has stemmed in the last few months regarding the consequences and the future of the decision by the European Court of Human Rights declaring Ireland in breach of an article of its Convention, in the A, B and C v Ireland case. The case involved three women, who for reasons of personal, financial or health-related wellbeing, underwent the termination of their pregnancies in Great Britain because uncertain of the legality of abortion in their circumstances or simply because they thought the present apparatus in Ireland to be too inefficacious.
These are painful stories intertwined, in a wider and older historical frame of debates and public outcry, involving morality, religion, law and revolving around the very essence of that intimate bond between a mother and her unborn child.
These are indeed very sensitive issues, but if one looks at the details of the case it clearly appears that the position of the Court is not to impose its views on abortion in Ireland, but rather to emphasise the fact that Ireland’s legislation, and its implementation are very nebulous and unclear. And this appears from the statement of the Court made in various occasions that it’s not its role to determine whether the approach taken by a determined country is right or wrong. As a matter of fact two of the three women lost their cases, because their complaints were not effectively a breach of a human right. If the third woman won, it was only because of some sort of lack of assistance by the state.
However, whatever the position anyone may take in this lengthy and valid debate, this court-case is useful for at least two reasons: it states where the relevant legal obligation on the matter is enshrined, and it also shows the development and evolvement of Irish society.
On the first point, the Court shows that the main relevant provision on a pregnancy termination is Article 40.3.3 of the Bunreacht na hÉireann, the document that represents at its utmost, the values, the morals of the country and its people. The article equates the life of the mother to the life of the unborn child but at the same time does not restrict abortion undertaken in other countries and allows a few exceptions to the rule. For example, in cases where there is a serious risk to the life of the mother. Many will remember or at least know the story that gave rise to this: the case of X, a tragic story that was eye-opening in many respects, and gave a new insight on the issue.
But this recent European case is also interesting because it showed how vivid and lively the debate on abortion has been in the last decades, also revealing how minds and opinions have changed gradually over time. This is shown in particular by the three referenda, to which the case relates, in 1983, 1992 and 2002 respectively, which, notwithstanding the small difference in the percentages, might still indicate an ever so slight change of mentality.
Who knows maybe this recent decision by the European Court of Human Rights can bring some fresh air and fresh ideas to both sides of the debate. There is little certainty on which programs or legislative solutions are envisaged for the near future. There are a few aspects of the case however that should be stressed. First and foremost this decision is neither pro-abortion nor pro-life. And as such it should be seen, before the double-edged sword of public outcry throws more dust on an already complex issue. It is a request of more clarity ensuring that those policies, adopted by the country at the moment, are put in practice in an effective manner.
Finally it is also particularly interesting to see the evolving relationship between a European court and a country on such delicate matters. Matters that ultimately involve extremely compelling arguments on both sides and that because of the role, played by society in our lives, are to such a great extent difficult to solve.
