As noted in Part I (November’s column), I believe the European Court of Human Rights (“ECHR”) - whose decisions were cited, inter alia, by our Supreme Court in 2003 in Lawrence v. Texas - is increasingly involved in politically-driven decision-making. If this is correct, it means these decisions are not reliable as a basis for knowing what European law is. Thus, for that and other reasons (as explained in my November and October columns), our Supreme Court should place no reliance upon them.
As I discussed in Part I, an examination of decisions such as Patton and Vo reveals that when someone seeks to restrict or penalize abortion by invoking provisions of the European Convention on Human Rights (the “Convention”), the ECHR has refused to apply those arguably applicable provisions. However, in other cases, the ECHR did apply those provisions. Let us examine some cases from this latter group to find out why.
In the 1992 case Open Door Counseling and Dublin Well Woman v. Ireland, the ECHR held that restricting information concerning abortion services outside of Ireland violated article 10 of the Convention, which guarantees the right to free expression. Thus, Ireland, and all parties to the Convention, must allow for the distribution of information regarding legal abortion services that are available in other states. This time the ECHR did not pay deference to the principle of subsidiarity, as is traditionally done (for reasons explained in Part I). Note: this involved a case where someone sought to extend “abortion rights.”
A very important, recent case is the 2007 decision Tysiac v. Poland. It, too, involves extending “abortion rights.”
In 2000, Alicja Tysiac, sought an abortion under Poland’s health exception. She suffered from myopia and believed the pregnancy would exacerbate the degenerative eye disease. Tysiac visited several specialists, none of whom would certify that her health was threatened by the pregnancy to meet the Polish health exception for abortion, and she subsequently gave birth to her child. After the delivery, her eyesight continued to worsen, but three ophthalmologists and a panel of the medical experts concluded that “the applicant’s pregnancies and deliveries had not affected the deterioration of her eyesight.”
The ECHR acknowledged it was not its function “to question the doctors’ clinical judgment as regards the seriousness of the applicant’s condition.” However, contradicting itself and even though Poland’s law requires a doctor’s certification, the Court said it was “sufficient to note that the applicant feared that the pregnancy and delivery might further endanger her eyesight.” The Court held that, in a circumstance where a woman disagreed with the determination of her doctor(s), a government must establish a procedure for her “to be heard in person and to have her views considered.”
The Court dismissed Polish legal criteria for determining the legitimacy of a woman’s claim for a health exception, declaring, “Once the legislature decides to allow abortion, it must not structure its legal framework in a way that would limit real possibilities to obtain it.” Specifically, it found Poland had violated Article 8 (Right to Respect for Private and Family Life) of the European Convention – precisely the same article under which it refused to find a right to limit abortion in Paton. In Tysiac, the court held Poland failed in its “positive obligations to safeguard the applicant’s right to respect for her private life in the context of a controversy as to whether she was entitled to a therapeutic abortion.”
Judge Borrego Borrego sharply criticized the majority opinion in his dissent for usurping legislative power and running counter to its own case-law in its approach and conclusions. He noted -
The judgment goes too far as it contains indications to the Polish authorities concerning “the implementation of legislation specifying the conditions governing access to a lawful abortion”. The Court appears to be proposing that the High Contracting Party, Poland, join those states that have adopted a more permissive approach with regard to abortion. It must be stressed that “certain State Parties” referred to in paragraph 123 [of the majority opinion] allow “abortion on demand” until eighteen weeks of pregnancy. Is this the law that the Court is laying down to Poland?
When considered along with the ECHR’s decision in Open Door,Tysiac signals a willingness of the ECHR to abandon settled principles of jurisprudence requiring it to defer to national states on “social issues” (which it readily applies when the question is that of restricting “abortion rights”) when the issue is the extension of “a right to abortion”.
Thus, it should be clear that the ECHR is moving in an increasingly activist direction on abortion issues, abandoning the limited role its founders intended for it and deciding cases in a politically-driven manner. Consequently, its decisions should not be relied upon by our courts.