The Conservatism of the European Court of Humans Rights Regarding Abortions on Demand

The Conservatism of the European Court of Humans Rights Regarding Abortions on Demand

Pitsou Anastasia (The Aristotle University of Thessaloniki, Greece)
DOI: 10.4018/978-1-4666-8153-8.ch011


In this chapter, the authors negotiate the fact that the European Court of Human Rights (ECtHR) missed the opportunity to recognize the right to abortion under specific criteria that are harmonized with the right to life and the right to privacy. It obviously remains a triumph of nationalism and of religious power over human dignity.
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In October 2012 a pregnant 31 year-old Indian woman (S. Halappanavar) died of septic shock in an Irish hospital, because physicians refused to terminate her pregnancy(Harison S, 2013). During her pregnancy, the woman faced health problems and demanded a life-saving abortion. Unfortunately, although the fetus was not to live, doctors claimed that the fetus had a heartbeat and refrained from the abortion procedure. In the Republic of Ireland, abortions have been regarded as a criminal offence, however following the death of Savita Halappanavar, they are allowed under specifics circumstances.

The death of this Indian woman reignited controversy concerning abortion and posed the question of the revision of Irish law. Namely, in the case X 1992, no.846P, a 14 year-old girl got pregnant after having been raped. Observing the amendment to the Irish Constitution (Art. 40(3)3, 1983) that defines that “the State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right” (Eighth Amendment of the Constitution Acte, 1983) the little girl decided to travel to England with her parents to have an abortion. However, the Attorney General was informed by the Director of Public Prosecutions and gained an interim injunction by the High Court aiming to prevent the girl and her parents from leaving the country for 9 months, so that the girl would carry to term. Under this severe pressure the girl proclaimed that she was going to commit suicide, if forced to carry the child to term. The Supreme Court held that putting the girl’s life at risk in this particular case also meant putting the life of the fetus in danger, and hence permitted the abortion (Attorney General v. X and Others, 1992).

Furthermore, in the case Open Door and Dublin Well Woman v Ireland, no. 14234/88; 14235/88, 1992, two non-profit organizations in Ireland provided counseling, procreation and family planning to women as well as information about abortion abroad. The organizations were accused of violating Constitutional Law and the state took precautionary measures against them aiming to restrain their activities. The European Court of Human Rights (ECtHR) held that the moral beliefs of Irish people could be respected, yet the court's injunctions were disproportionate of their aims (Case of Open Door and Dublin Well Woman v. Ireland, 1992). Similarly, the ECtHR recognized the violation of the right to freedom of expression (Art. 10 of the European Convention on Human Rights (ECHR)). Taking the aforementioned cases into account (case X and the case of Open Door and Dublin Well Woman v Ireland), the 14th Amendment of the Constitution Act (1992) urges that the right to life of the unborn (40.3.3) should keep up with the freedom to travel between Ireland and other countries and with the freedom of providing available information for abortion procedures lawfully in another state (8th Amendment of the Constitution Act, 1983). Essentially, in this amendment of the Constitution Act, the threat of suicide was rejected as grounds for access to abortion in Ireland. This decision was founded on fear, using as a pretense that pregnant women are able to pretend to be suicidal to deceive doctors and to convince them to perform the desired abortion (Report of the Expert Group on the Judgment in A,B &C v Ireland, 2012). The religious/political aspect of reproduction stereotypes regarding women seem to be reinforcing the long-disputed question whether women have the inherent capability to trick men, thus deceiving physicians to perform abortion services in Ireland.

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