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ECHR - Human Right Violated by Abortion Ban

  • 16-12-2010 11:14am
    #1
    censuspro
    Registered Users, Registered Users 2 Posts: 881 ✭✭✭


    According to rte website it says " In Irish law, an abortion is permissable if there is a risk to a woman's life". Is that actually the case and if so why was the abortion prevented from being carried out? The only reason I could imagine is if the doctors medical opinion was that there was no risk to the woman's life?

    http://www.rte.ie/news/2010/1216/abortion.html

    How long before this case is argued in the context of the Lisbon Treaty and the guarantee on abortion.


Comments

  • #2
    Het-Field
    Closed Accounts Posts: 3,350 ✭✭✭Het-Field


    Lisbon has nothing to do with this. The ECHR and the EU are different institutions, and even though no new rights have been created, it cannot be suggested that the EU have anything to do with this.

    This is simply legislating for rights whihc have not been implemented. Nothing more, nothing less. This is articulated by the fact that two of the three applicants failed in their respective challenge. Women were entitled to abortions if their life was at stake, the state was just unwilling to legislate.


  • #3
    View
    Registered Users, Registered Users 2 Posts: 3,872 ✭✭✭View


    censuspro wrote: »
    According to rte website it says " In Irish law, an abortion is permissable if there is a risk to a woman's life". Is that actually the case and if so why was the abortion prevented from being carried out? The only reason I could imagine is if the doctors medical opinion was that there was no risk to the woman's life?

    http://www.rte.ie/news/2010/1216/abortion.html

    How long before this case is argued in the context of the Lisbon Treaty and the guarantee on abortion.

    The case has absolutely nothing to do with the EU, much less the Lisbon Treaty.The ECtHR is a court of the Council of Europe - a totally different organisation to the EU (It is both older, larger and deals with different issues).

    The Court ruling is basically to the effect that the government has violated the woman's human rights by failing to put legislation in place to implement the decision of the (Irish) Supreme Court in the X case.

    In other words, the Oireachtas sat on the issue (deliberately) and the court has given them a kick up its a&*e as a result.


  • #4
    FreudianSlippers
    Registered Users, Registered Users 2 Posts: 20,397 ✭✭✭✭FreudianSlippers


    censuspro wrote: »
    According to rte website it says " In Irish law, an abortion is permissable if there is a risk to a woman's life". Is that actually the case and if so why was the abortion prevented from being carried out? The only reason I could imagine is if the doctors medical opinion was that there was no risk to the woman's life?

    http://www.rte.ie/news/2010/1216/abortion.html

    How long before this case is argued in the context of the Lisbon Treaty and the guarantee on abortion.
    Yes. The case is called Attorney General v X, it is a 1992 Decision of Cúirt Uachtarach na hÉireann.

    It overturned a High Court decision to grant an injunction restraining X from leaving the jurisdiction to procure an abortion. It was a 4 to 1 holding that considered Article 40.3.3 of Bunreacht na hÉireann and decided that this article actually enshrined a woman's right to an abortion if there was "a real and substantial risk" to her life.
    The risk had to be to her life, not just her health - however, as was the case in 'X', the risk was suicide (X was raped and impregnated and said she was going to kill herself) and the Court held that a genuine risk of suicide was "a real and substantial risk".

    Now, I've not yet read the ECHR decision so I can't comment on that, but perhaps I will read it later today and get back to you on what this may mean for us in this jurisdiction.
    From what I understand it's nothing too ground breaking... I think the case still involved a risk to life.


  • #5
    FreudianSlippers
    Registered Users, Registered Users 2 Posts: 20,397 ✭✭✭✭FreudianSlippers


    Het-Field wrote: »
    Lisbon has nothing to do with this. The ECHR and the EU are different institutions, and even though no new rights have been created, it cannot be suggested that the EU have anything to do with this.
    View wrote: »
    The case has absolutely nothing to do with the EU, much less the Lisbon Treaty.The ECtHR is a court of the Council of Europe - a totally different organisation to the EU (It is both older, larger and deals with different issues).

    While this is technically correct, it is also incorrect (or at least out-dated).

    Firstly, the ECJ is bound by article 6 of the treaty of Nice to recognise the rights established in the ECHR.
    Secondly, the ECJ very often relies on the case-law of the ECtHR in implementing its decisions.
    Finally, the reason that the EU never signed to the ECHR was that it was ultra vires its powers to do so. However, post Lisbon the EU can now sign to the Convention and is expected to do so at some stage in the near future.
    This would make ECtHR decisions binding on the ECJ.

    So, you are right, but I think the above is important in recognising that there is a close relationship between the ECtHR and ECJ.


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