The European Court of Human Rights has ruled that Ireland’s laws banning abortion breach European human rights law because they do not make exceptions when the life of the mother is in danger:
In a landmark and binding case that could have implications for other European countries, the court ruled that Ireland had breached the human rights of a woman with a rare form of cancer who feared it would relapse when she became unintentionally pregnant.However, the woman was unable to find a doctor willing to make a determination as to whether her life would be at risk if she continued her pregnancy to term.In a landmark and binding case that could have implications for other European countries, the court ruled that Ireland had breached the human rights of a woman with a rare form of cancer who feared it would relapse when she became unintentionally pregnant.
However, the woman was unable to find a doctor willing to make a determination as to whether her life would be at risk if she continued her pregnancy to term.
The decision is more encouraging than it might first appear. The court ruled that in the cases of two other women who both obtained abortions abroad that while Ireland’s restrictions on abortion interfered with their right to have their private lives respected, the interference was justified because of the “legitimate aim of protecting public morals as understood in Ireland.” It also reiterated that individual countries have a right to set their own abortion laws.
The problem with the abortion law in Ireland, according to the court, was that while it allowed an exception where there is a “real and substantial risk” to the life of the mother, the Irish government makes it impossible for women to get medical advice or to obtain abortions in such cases. Because doctors and patients run the risk of “serious criminal conviction and imprisonment” if a doctor so much as concludes that abortion is an option because the mother’s health is at risk from pregnancy, it makes the exemption untenable.
The Irish government will likely enact legislation setting out how and in what circumstances women with life-threatening conditions can obtain abortions.
What is most interesting about the decision is that it mainly involves an intramural debate in the antiabortion camp: Are legitimate threats to the life of the mother a valid reason to allow for an abortion?
So the question of the day for my fellow pro-lifers is, “Did the European Court of Human Rights make the right decision in ruling that the life of the mother must be taken into consideration?”
December 16th, 2010 | 2:17 pm
If it is OK for an international court to rule at all on the internal affairs of a nation-state, and I suppose Ireland has ceded the EU that right, then, yes, it seems to be the right decision.
A practical & literal “life of the mother” standard should be applied in writing laws protecting preborn children. Both lives are precious: when there is a genuine conflict between them, government shouldn’t pick winners and losers.
December 16th, 2010 | 2:58 pm
Given that there is *always* a risk to the mother’s life during pregnancy, it is not difficult to envision that what the European Court of Human Rights has given in this case — that Ireland can indeed prohibit nearly all abortions as a matter of public morals — it can later take away, without the imput of the Irish people or their government.
December 16th, 2010 | 2:59 pm
Abortion is never medically necessary since pregnancy is not a disease and a fetus is not a tumor. There are conditions that require severe medical treatments that can indirectly cause the death of the unborn child. These treatments are NOT abortion.
December 16th, 2010 | 6:30 pm
Stephen –
Your considered medical opinion is noted. What of people who have different medical opinions? Ones from doctors, even?
You can encourage people to risk their lives for others. You can offer whatever support you like. You cannot (legally or morally) force people to risk their lives for others. And yes, there are cases where carrying a baby to term puts the life of the mother at substantial risk. No, not guaranteed death, we don’t get guarantees in life, especially medicine. But because we don’t get guarantees we allow people to balance their own risks.
To take an example, i’m aware that the Catholic church allows a section of the fallopian tube to be removed – impacting reproductive function – in the case of ectopic pregnancy. Should this be the only treatment legally allowed?
December 17th, 2010 | 1:20 am
[...] European Court Rules Against Irish Abortion Law – Joe Carter, First Thoughts [...]
December 17th, 2010 | 3:37 am
Ray Ingles wrote “You cannot (legally or morally) force people to risk their lives for others.”
So conscripts cannot be marched into battle, with bayonets at their backs? Or ordered to hold a position, to protect the army’s retreat?
Interesting point of view.
December 17th, 2010 | 8:52 am
From a more political point of view, I do not agree with an international court ruling on a case that covers an issue that should remain firmly within the grasp of the local (read: national) government. I also do not agree that because this woman does not want to risk the child contracting this same cancer it constitutes a risk to her own well-being. There is just as much of a chance that the child could end up perfectly healthy and it should be given that chance. I think the doctors should be allowed to diagnose whether or not the mother is at risk, but I still cannot find a justification for an abortion without that assessment first being made.
December 17th, 2010 | 9:46 am
@Ingles: You drop from the general to the specific without a pause. The specific case you cite is not the kind that is being questioned as allowing ectopic pregnancy to go to term kills both. The Church doesn’t “allow a section of the fallopian tube…”, it chooses in favor of life for both the mother and the child. Are there cases where it is known the mother will die and the baby will live, if the baby is not killed? That’s a much harder line to draw, but it must be seen in terms of, “Can we save both lives?”, not in terms of “Can we avoid carrying a burden?”. Sometimes the probabilities are wrong and both survive. Sometimes the baby is the miracle.
Kudos to Michael PS. He puts his finger on the crux of the problem with, “Don’t force your morality on me,” as a universal solvent. It bothered me for a long time before I realized that viewpoint only leads to anarchy, the real deadly kind not the kind with a brand that plays loud music.
December 17th, 2010 | 10:09 am
Michael PS – I’d agree with Robert Heinlein that “No state has the inherent right to survive through conscript troops and in the long run, no state ever has.”
December 17th, 2010 | 12:00 pm
Mike Melendez –
Raped 9-year-olds come to mind:
http://www.time.com/time/world/article/0,8599,1883598,00.html
The article understates the case a bit. Labor was far from the only danger the girl faced. Simply carrying a child at that age is dangerous. Carrying twins is dangerous for fully-grown women.
Then there are cases like eclampsia or severe pulmonary hypertension:
http://ncronline.org/news/justice/nun-excommunicated-allowing-abortion
We’re getting better at being able to keep both mother and baby alive long enough to allow the baby to be delivered prematurely and survive. But when eclampsia occurs with other conditions at the same time…
True, but as EM said above, “when there is a genuine conflict between them, government shouldn’t pick winners and losers.”
Absolutely. My wife is such a case, and her mother is one of the people I admire most on this Earth. But you don’t get to – indeed, can’t – force heroism.
There are case that go the other way, too… where one or both are lost. They really exist, and our legal frameworks have to deal with that reality, too.
December 17th, 2010 | 12:04 pm
Count me skeptical. The goal of the court has always been to force Ireland to remove all abortion limits. They are starting with a hard case but it is only a start. The “life of the mother” exception is very easy to interpret broadly and include all abortions. This happened with Row v Wade. The exception in that decision ended up being de facto abortion on demand.
December 17th, 2010 | 12:10 pm
While I agree that “pregnancy is not a disease and a fetus is not a tumor,” that no more means that the pregnancy itself does not have to sometimes end to save the mother, than that an organ never has to be removed to save a cancer patient. Organs are not inherently unhealthy presences in the body, but in a fallen world they, or the systems necessary for their function, can become diseased to the extent that their continued presence is incompatible with continued life. So, too, things can happen with a pregnancy to create that result.
All that said, it is a rare condition, rarer than those who would like to keep open a very wide door for abortion would like to admit. But it is not an false or impossible one.
December 17th, 2010 | 1:52 pm
“Absolutely. My wife is such a case, and her mother is one of the people I admire most on this Earth. But you don’t get to – indeed, can’t – force heroism.”
But you can decide when heroism is involved. Though, like I said, that’s a much harder line to draw. Soldiers are not punished for not being heroes, they are punished for, e.g. running in the face of the enemy.
As an aside, WWII was fought with a conscript army as were all of Napoleon’s wars. (Napoleon went far in inventing the idea.) Napoleon didn’t fall to his army. We’re still around. (Switching to an all volunteer military didn’t save the state but did give us a much better military if a much smaller one.) I love Heilein as a storyteller but I’m not too big on his philosophical musings, libertarian that he was. He was better than Ayn Rand, there is that.
December 17th, 2010 | 3:48 pm
@Ray Ingles: I have some squabbles with what you’ve said, but for the most part, the examples you give make for a strong argument allowing abortion in very limited circumstances. Here’s what I don’t get. Inevitably, whenever a court rules in favor of a right to abortion, the arguments it uses to defend its ruling sound very much like the ones you’ve just given. But there are not nearly that many “raped 9-year-olds” that become pregnant, “fully-grown women” that are “carrying twins”, and pregnant women suffering from “eclampsia or severe pulmonary hypertension” to explain the massive number of abortions performed per year. Clearly, there’s a disparity between the arguments given and the rulings issued. What do you think the courts need to do to eliminate that disparity? In other words, what restrictions do you think the courts should place on abortion so as to close that gap?
December 17th, 2010 | 8:30 pm
JB in CA –
Or, phrased more neutrally, “there are at least some circumstances where abortion should be allowed”. Note that Jewish law has recognized this for a long time now.
Further note that, in practice, virtually all late-term abortions fall into this category. In reality, hardly anyone remains pregnant past six months and then, willy-nilly, decides to have an abortion. I won’t say it never happens, but it is, er, rather far from the norm.
Well, I don’t think that the law can take souls into account. (If you think so… provide a legal definition of ‘soul’.) I think laws that are going to apply to everybody need to have a solid secular reason behind them – an appeal to “natural law”, to speak in Catholic terms. (Religious groups are free to make rules for their adherents that don’t impact the rights of others, of course.)
Now, whatever consciousness is – and I think a very solid case can be made that awareness is a necessary condition for personhood – it demonstrably depends on the brain. The brain takes a long time to develop – the parts of the brain that process pain, for example, don’t really connect up to the rest of the brain until after the 20th week.
Before there’s a full, interconnected brain, I don’t see any kind of natural-law argument that you have a person as opposed to tissue in the process of developing into a person. I can’t see how abortion is ending an actual, as opposed to potential, person’s life.
Later on, it’s a lot more problematic – but by that point, abortions are only really carried out for medical reasons, which we’ve already established exist and are legally relevant.
December 21st, 2010 | 2:36 am
Or, phrased more neutrally, “there are at least some circumstances where abortion should be allowed”.
Only if there are not stronger arguments disallowing abortion in those very limited circumstances.
Now, whatever consciousness is – and I think a very solid case can be made that awareness is a necessary condition for personhood …
This is a rather tendentious view. For instance, are we really conscious at all times during sleep? If not, does that mean we’re not persons at those particular times at which we’re unconscious? If so, what gives us the right not to be “aborted” at those times? Potential personhood? But that, as you pointed out, is a trait that the fetus already has.
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