A court ruling has importantly reaffirmed that abortion is essentially a matter for national decision. But, writes Donncha O'Connell, that does not mean total discretion
The European Court of Human Rights in Strasbourg has managed to avoid ruling directly on the issue of abortion for over 50 years. This is because the court's role in the protection of human rights is subsidiary to that of national courts.
On an issue as controversial as abortion, where it is impossible to find a common European position, the court will unsurprisingly bend over backwards to defer to national authorities on how this issue is to be regulated by law.
In so doing it employs a technique of interpretation of the European Convention on Human Rights (ECHR) called "the margin of appreciation doctrine" under which the 45 member-states of the Council of Europe are allowed to observe their convention obligations on a variable or state-specific basis.
A similar reluctance to rule definitively on the issue of abortion is evident in the jurisprudence of the European Court of Justice in Luxembourg, the court of the 25 member-states of the European Union.
On Thursday last a Grand Chamber of the Court of Human Rights delivered a majority judgment in a case taken against France in which tacit acquiescence in the French government's position on the legal personality of a foetus was indicated.
This will not be without controversy if only because abortion cases are always controversial. This case also comes at a time when the UK is considering a proposal to reduce the period in which certain abortions can be carried out legally, thereby opening up further public debate on foetal rights.
In Vo v France, a Vietnamese woman who was about 20 weeks pregnant was mistaken by a doctor for another pregnant woman with the same name and subjected to a procedure which resulted in harm to her foetus and, ultimately, in an involuntary therapeutic termination of her pregnancy.
Although she had the option of suing the doctor for medical negligence before the civil courts she chose to have him prosecuted for the criminal offence of unintentionally killing her unborn child.
She was not successful before the French courts as, under French law, a foetus is not regarded as having a legal personality separate and distinct from that of its mother.
It should be noted that the period within which an abortion can be lawfully obtained in France is 10 weeks after conception, and the law makes no distinction on the basis of viability in the area of abortion. That is not to say that French law in this area is entirely settled.
When the case was considered by the European Court of Human Rights the central question was whether the absence of a criminal remedy within the French legal system to punish the unintentional destruction of a foetus constituted a failure on the part of the state to protect the right to life by law within the meaning of Article 2 of the convention (ECHR).
In other words, did the positive obligations arising for a state under that provision of the convention - to provide preventive and remedial measures under the rubric of the right to life - apply in the context of prenatal life?
Contrary to initial media reports, the majority of the Grand Chamber did not state definitively that Article 2 of the ECHR had no applicability in the context of foetal rights. It did, however, find that there was no incompatibility between French law that excluded unborn life from the scope of protection of the right to life and the requirements of Article 2 of the ECHR.
It explicitly left open the question of whether, in another context, foetal rights might legitimately come within the scope of application of Article 2.
In the aftermath of this decision it remains true to say that international human rights law (as represented by the ECHR) prefers neutrality on the issue of abortion. However, this will not be to the liking of the anti-abortion movement.
While the European Court sees abortion as an issue more appropriately regulated by national law, that does not mean that states can do whatever they wish in this area, as a matter of international law.
An absolute ban on abortion would almost certainly be incompatible with the convention for failing to provide adequate protection for the right to life of pregnant women and girls. Such a ban might also violate the privacy provision contained in Article 8 of the convention.
A provision that treats the right to life of a mother and that of an unborn foetus as equal (akin to Article 40.3.3. of the Irish Constitution) might also fall foul of international human rights standards depending on how such an equal protection of rights was detailed in domestic law.
If the upshot of such equal protection was to create a legal jeopardy for the right to life of expectant mothers, there would certainly be an arguable case that this involved a breach of Article 2 of the ECHR.
By the same token a law that is so unclear on the issue of civil and criminal liability in relation to abortion might also be in breach of the convention as an inadequate protection of the right to life if the lack of clarity of such law had a determining detrimental effect on the actions of a putative victim.
In Ireland there is a constitutional right to abortion where there is a real and substantial risk to the life of the mother including the risk of self-destruction.
However, criminal sanctions exist for those who perform abortions, and medical ethics prevent the carrying out of abortions. To that extent the constitutional right to abortion is abstract and is only realised through the exercise of the constitutional right to travel.
Last Thursday's decision of the European Court of Human Rights has no direct implication for this rather confusing legal position, but it remains to be seen whether the uniquely disjointed nature of Irish law on abortion comes within the margin of appreciation afforded to states under the ECHR.
There are many popular misconceptions about the relevance of international human rights law to issues like abortion.
It is a favourite prediction of the more extreme protagonists in this perpetual debate that national "pro-life" laws are under threat from undemocratic forces, in the form of national or international courts; or democratic forces, in the form of fickle parliaments.
Both of these potential threats have been conflated by opponents of the new EU constitution which, contrary to their assertions, replicates the international hands-off approach to the issue of abortion, leaving issues such as the personhood of the unborn to be determined by national authorities.
As long as international law affords sovereign states a margin of discretion to determine their own laws on controversial issues where international consensus is absent the vital forces of any democratic society - including the pro-life and pro-choice movements - can rest assured that the likelihood of "external" determination of these issues is minimal.
Donncha O'Connell is a lecturer in law at NUI Galway where he teaches European human rights and constitutional law. He is also the Irish member of the EU Network of Independent Experts on Fundamental Rights established by the Commission in 2002