Access to safe and legal abortion could soon be declared a human right in Europe.  Irish reproductive rights advocates and 3 female plaintiffs have brought a case to the European Court of Human Rights (ECtHR), claiming harm suffered by Ireland’s abortion ban.  Ireland is unique amongst European countries in the extent to which is has legally opposed abortion.  Not only has Ireland banned abortions since 1861, accessing abortion can be punished with up to life imprisonment.  In a truly novel move, the “right of life of the unborn” is enshrined in Ireland’s Constitution, giving the document a particular religious slant. Recently, in a battle described as Rome vs. Brussels, Ireland tied its backing of the EU’s Lisbon Treaty to promises from the other 26 states parties that the Charter would not affect Ireland’s abortion ban.  Clearly, Ireland takes the ban extremely seriously and has  created  extensive legal and political barriers to accessing abortion. 

While Ireland is busy mounting its defense, claiming sovereignty rights and that the plaintiffs have not exhausted their domestic remedies–despite the substantial legal barriers the government has put in place, diminishing the idea that there is a domestic arena in which to contest the ban–the women involved are reminding the rest of the world of the human rights dimensions to accessing abortion.  All three had to travel abroad to have an abortion, and all three state that they experienced risk to their health, added trauma, stigma, and a financial burden because of this. Each faced particular challenges that led them to seek abortion and that made traveling abroad to access abortion more difficult—for example, one of the women discovered she was pregnant while undergoing chemotherapy treatment for cancer. The pregnancy threatened her life and the cancer treatment threatened the survival of the fetus. 

There are many human rights that are relevant to protecting access to safe and legal abortion, and this case could be a substantial step forward in articulating an “abortion as a human right” legal framework.  The Guardian UK reports that the plaintiffs are invoking several articles of the European Convention on Human Rights, “notably the rights to life and to privacy and family life, as well as bans on inhuman and degrading treatment and on discrimination.” Human Rights Watch lists many more implicated rights, such as the right to health and health care; the right to security of person; the right to liberty; the right to information; the right to decide the number and spacing of children; the right to enjoy the benefits of scientific progress; and the right to freedom of thought and religion.  Advocates speaking before the court have framed the issue as an access to health care case and spoken out against allowing a State to create barriers to women’s health care.  The strong tradition of Catholicism in Ireland is the driving cause behind its abortion ban and Constitutional protection of the “rights of the unborn,” making this a case of a religiously motivated government enforcing a particular religious belief on all of the women and girls within its borders. 

For years anti-abortion activists in the US have sought to have international influence, and the ECtHR has allowed such groups to submit arguments in favor of Ireland’s abortion ban.  As I wrote about in November, the U.S. government is currently debating whether or not to expand barriers to women and girl’s health care by substantially limiting access to abortion via the Stupak amendment to the national health care reform act.  Despite the fact that the U.S. does not buy into most of the human rights implicated by access to abortion and does not frame U.S. abortion rights in the terms of this ECtHR case—such as equality and freedom from discrimination—freedom from imposition of religious views and the right to privacy do enjoy significant legal and political traction in the U.S.  If the ECtHR chooses to frame this as a right to health care and health issue, it could aid the case of those working against the Stupak amendment. 

But however the ECtHR frames it, a win for access to abortion as a human right will add substantial force to the cause of reproductive rights around the world.