As I noted in a prior column, the U.S. Supreme Court’s decision in Lawrence v. Texas, in 2003, stirred up a firestorm. The reason was that the majority relied, in part, on European precedent, including decisions from the European Court of Human Rights (“ECHR”), to decide a case under American law. One of those ECHR decisions I criticized in my prior column. There have, in fact, been other decisions from ECHR on disputed social issues that underline the inconsistent, politically-driven nature of ECHR jurisprudence in those areas. That, in turn, should serve as a warning to the American people – and to American courts – that reliance on ECHR decisions in American cases is a very bad idea. In this column and the next, I will look in some detail at these ECHR decisions.  

Both the European Court of Human Rights and its predecessor, the European Commission (the “Commission”), have weighed in on the legal effect of national laws relating to abortion. They have done so in order to ascertain whether such laws conflict with rights secured under the European Convention on Human Rights (the “Convention”). Until recently, the jurisprudence of the ECHR followed the common European understanding that great deference is to be given to national states in regulating social issues (such as abortion and marriage).  In line with this philosophy, the ECHR neither recognized a right of a woman to obtain an abortion nor a right to life of an unborn child, leaving it to national states to decide how to regulate abortion. Let me give some examples of ECHR jurisprudence in this area on this point.   

In 1981, the Commission heard the case Paton v United Kingdom. This case involved a father who attempted to secure an injunction, under his right to his “family life,” to prevent his wife from having an abortion. He sought this injunction under Article 8 of the Convention. Article 8 provides: “Everyone has the right to respect for his private and family life, his home and his correspondence.” The Commission decided Article 8 did not provide the husband with a right to an injunction, thus relegating him to his national courts to resolve the matter.    

Another case worth examination is Vo v. France, decided in 2004, Vo, a Vietnamese woman living in France, brought suit to have the right to life of her unborn child recognized under Article 2 of the Convention. Article 2 provides: “Everyone’s right to life shall be protected.” Vo sued because, during a visit to the hospital, she was mistaken for a woman who had requested an abortion, and a doctor aborted her child.   

The ECHR refused to extend the right to life to Vo’s unborn child. The ECHR was “convinced that it is neither desirable, nor even possible as matters stand, to answer in the abstract the question whether the unborn child is a person for the purposes of Article 2 of the Convention…” Again, it deferred to national courts to resolve the matter.  

Vo and Paton each seem to exemplify the traditional jurisprudential stance of the ECHR to abortion issues, neither recognizing the “right to life” of the unborn or “a woman’s right” to an abortion, thereby leaving the issue to the member states to decide for themselves. However, I would like to suggest that this is not actually the case. To see why, it is necessary to examine these cases in a wider framework of ECHR jurisprudence on social issues.   

It is highly significant, I believe, that both Patton and Vo were cases in which someone sought to restrict or penalize abortion. In each case, the ECHR refused to apply arguably applicable provisions of its governing document (see above for those provisions). Not surprisingly, these same provisions were involved in other cases involving abortion; yet, in those cases, the ECHR did apply Convention articles to decide the case. What was the difference? I suggest it is that those cases (to be examined in my next column) involved the extension of “abortion rights”, not their limitation, This, in turn, points us to what, I believe, is an emerging “principle” of ECHR jurisprudence, a principle wholly inconsistent with the traditional European deference to national courts on social issues – where abortion is concerned, the ECHR will “apply” Convention articles to extend the “right,” but will not apply them so as to limit it. Thus, it appears the ECHR is moving in an increasingly activist direction on abortion issues. However, it has no European mandate to do so, and is, in fact, abandoning the limited role its founders intended for it. Thus, it is reasonable for Americans to reject any recognition of or reliance upon such decisions in U.S. courts. (As noted, I will return to this issue in my next column, when I will examine ECHR’s decisions where it used the same Convention articles to extend “abortion rights” that it refused to apply in the cases discussed above to limit them.)