Too Much Juris-Prudence? A European Court Punts on Abortion

[WSJ_law_blog]

Among politicians here in the U.S., it’s nearly become sport to bash “activist” judges. These are jurists, the thinking goes, either who jump into questions that are essentially “political” in nature or, even worse, provide sweeping rulings where restraint is called for.

But Europe is currently sitting on a problem of a different sort — a court viewed by some as too passive. For years, the European Court of Human Rights, established to uphold rights to life, privacy, freedom of religion and the like, has essentially turned a blind eye to Ireland’s abortion laws, considered among the most restrictive in Europe. Critics say that the passivity is helping perpetuate an inequitable patchwork of rules across the region. Click here for the story from the WSJ’s Paula Park.

“So far the court has been very cautious,” says Siobhán Mullally, senior lecturer at the University College Cork Faculty of Law.
The current case, A.B. and C. v. Ireland, was brought by three Irish women who received abortions in England for health reasons and suffered medical complications upon their return to Ireland. The women say they were uncomfortable seeking medical treatment, both before and after the abortions, because of Ireland’s laws. The applicants argued to the ECHR that the Irish laws infringed on their rights to life, privacy and freedom from discrimination.

Interestingly, U.S.-based lawyers have thrust themselves into the center of the fray. Julie Kay, a senior attorney for Legal Momentum, filed the argument on behalf of the women. The Alliance Defense Fund, a U.S. nonprofit group that aims to “aggressively defend religious liberty” represents the Family Research Council, an intervener for the Irish government.

It is a topic of a longstanding debate in U.S. history. Some say it’s good for the justices to wait, allowing time for the political process to resolve issues. Others argue that the court was created, in part, to resolve conflicts. A woman could die in one country from complications from a pregnancy, where another state would have protected her life.

Prof. Richard Kay of the University of Connecticut School of Law says that while the European court has no binding authority, the Irish government would likely comply with whatever ruling the ECHR came down. It’s a sophisticated country, he says. It follows the rule of law.