Reproductive Choice in the Hands of the State: The Right to Abortion under the European Convention on Human Rights in Light of A, B & C v. Ireland

I. INTRODUCTIONBetween 1980 and 2010, at least 147,912 Irish women traveled outside their own country to gain access to safe and legal abortions.1 These women were required to travel abroad due to Ireland's prohibition on abortion in all circumstances except where there is a real and substantial risk to a woman's life that can only be avoided by terminating the pregnancy.2 Irish law effectively forces all women seeking abortions who cannot meet this high burden to travel outside of Ireland to obtain an abortion, regardless of the circumstances.3When A, B & C v. Ireland4 came before the European Court of Human Rights ("the Court"), the Court was presented with the question of whether Ireland's abortion laws violate the European Convention on Human Rights ("the Convention") and had the opportunity to declare that Article 8 of the Convention, the right to privacy, guarantees women a fundamental right to abortion. When the Court failed to do so in its December 16, 2010 decision, reactions to the ruling were mixed.5 While abortion activists criticized the Court's ruling regarding A and B, many applauded the Court for expanding the right to abortion through its ruling in applicant C's case.6 Because C's life was at risk, the Court held that Ireland violated the Convention by failing to provide a regulatory framework through which C could establish her qualification for a lawful abortion in Ireland.7 While this aspect of the Court's holding is seen as a step forward for abortion rights in Ireland, the Court declined to hold that the Convention provides a fundamental right to abortion and instead declared that Ireland did not violate applicants A and B's rights even though their health and well-being - rights protected as part of the fundamental right to privacy - were at risk.8 Because the Court ruled that Ireland violated C's right to privacy,9 this Comment will not focus on the Court's holding regarding C and will only analyze the Court's failure to uphold applicants A and B's right to health and well-being as part of their right to privacy.Article 8 of the Convention guarantees the right to privacy,10 which the Court has held to encompass, among other rights, the right to health and well-being.11 The Court's ruling in A, B & C examined a woman's right to an abortion in cases where an abortion is necessary to protect a woman's health and well- being, as in the cases of A and B. The Court assessed this right in light of Ireland's aim of protecting "public morals," which, Ireland asserts, includes the protection of fetal life.12 In A, B & C, the Court ruled that Ireland's abortion laws satisfy women's right to health and well-being. The Court found that Ireland successfully balanced competing State and individual interests by granting women the right to travel out of the country to obtain an abortion. Therefore, the Court upheld Ireland's abortion laws despite the laws' failure to recognize an exception when a woman's health is at risk.13This Comment argues that the Court in A, B & C incorrectly assessed the right to health and well-being under Article 8 of the Convention by misapplying the margin of appreciation test used to determine whether a State's restriction on a fundamental right violates the Convention. In doing so, the Court improperly deferred to Ireland's domestic legislation by granting Ireland a broad margin of appreciation - the ability to regulate a fundamental right guaranteed under the Convention. Specifically, this Comment argues that the Court incorrectly assessed Ireland's margin of appreciation to restrict the right to health and well-being by disregarding the sweeping nature of Irish abortion law and its effect on women's health and well-being, and by incorrectly examining European consensus on the issue. By finding that Ireland's restrictive abortion laws successfully balance Ireland's aim of protecting public morals and women's right to health and well-being, the Court in A, B, & CB, & C significantly limited women's right to privacy under the Convention. …