ABC Case Judgement: ECrtHR Redefines Irish Constitutional Pro Life Clause in Legal First. (Its Now a Pro Abortion Clause…..)

What no one has really reckoned on yet is the reaction of the Irish people who will resist this insult to their integrity and who, as a nation, surely have a love of their children born and unborn, sometimes equalled but never surpassed.

Grand Chamber Judgment A. B. and C. v. Ireland 16.12.10

The ECrtHR announced its decision on the ABC abortion case earlier today. Click above for the full press release from the court office.

The court rejected two of the appelant cases and accepted the third case , C, on one ground only. Bizarely the court found that Ireland had a “constitutional” right to abortion. And that C had had her Article 8 convention rights violated by the Irish Government’s failure to provide her with a pathway to effecting that alleged constitutional right.

The ECrtHR was acting well beyond its remit in interpreting the Irish Constitution. Further the ECrtHR has actualy interpreted the pro life clause in the Irish Constitution as a “right for women to access abortion”. This is due to the unecessary addition of the “equal rights of the mother” phrase which was inserted into the pro life clause against the wishes of Dr Eamon O’Dwyer and other leading promoters of the original pro life constitutional clause. Unfortunately the Pro Life Campaign at the time agreed with the clause being added to the basic acknowledgement of the right to life of the unborn child.

Article 40.3.3 reads:

” The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right. (BUNREACHT NA hÉIREANN)

The article 8 right in the European Human Rights Convention, on which the ECrtHR ruled in favour of the applelant C, is the right to “Family and Private Life” provision. Read carefully the judgement reveals that the ECrtHR actually did not find that Article 8 gave a right to abortion. It found for C on the spurious ascertion that the State had not provided her with the means to obtain her alledged “constitutional rights” to an abortion.

Uncannily this is akin to the basis for the Roe v Wade decision all those years ago in America.

Also of note is the involvement of the International Planned Parenthood Federation. The Irish Family Planning Association took the case on behalf of the three women, they in turn are full members of the IPPF. The IPPF recieves funding from, amongst others, the British Government for SAAF (safe abortion activism fund). A truly international effort for sure.

Clearly there was no chance of actually changing the law in Ireland by democratic means and therefore a more cunning plan had to be arranged.

The Judgement is ambiguous and it is hard to call the next move. There is no appeal from the Grand Chamber (the rather ostentatious name the ECrtHR higher court gives itself).

The Judgement, contrary to some reports such as the Washington Post, does not attack the Irish Constitution, but rather more suscinctly misinterprets the pro life clause. Therefore effectively insisting on the Constitution. (No wonder the pro abortionists didn’t flinch at the so called “abortion guarantees” attached to the Lisbon Treaty).

It seems that the ECrtHR is too smart to tackle the Irish Constitution head on, this would create a backlash, so it has insisted upon a perverse interpretation.

The 1992 X case has also been commented upon, and the alleged failure of the Irish Governement to legislate to allow for abortion in the circustances outlined by the X case. This was a perverse decision by the Irish Supreme court which effectively flew in the face of the Criminal Statute law and the Constitutional Pro Life provision.

What the ECcrtHR has not commented on is how exactly the Irish Government can allow abortions without changing the Criminal Law. Of course it has to change the Criminal Statute in someway if the demands of the court are to be met.

Pre Lisbon Treaty there would have been no power of either the ECrtHR or the EU to effect this, post Lisbon Treaty the mechanism is provided, should it become necessary and the Irish refuse to play ball. (see previous discussions here and here).

The present guess of this writer is that the weak Irish Government will plum for Abortion Guidelines which “clarify” and misinterpret the Criminal Law on abortion to the taste of the pro abortion lobby. This will proclude the necessity to put a referendum to the Irish people on  new legislation affecting the Statute Law, a referendum the Government would surely lose. The Irish Family Planning Association will be hovering in the background, like the spectre at the feast, “assisting” the Department of Health in drafting the guidance. The IPPF will feel like the cat that got the cream, after all it’s a dab hand at “guidance” on abortion. This would also prevent the EU from flexing its Lisbon Treaty muscles too soon.

What the Irish Government should really do is snub this ruling and treat it with the disdain it deserves. It should call the bluff of the ECrtHR and see what the Paper Tiger does next.

What no one has really reckoned on yet is the reaction of the Irish people who will resist this insult to their integrity and who, as a nation, surely have a love of their children born and unborn, sometimes equalled but never surpassed.

Please see also Religion Law Blog by Neil Addison Barrister for more comment on this case.

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