Comment on A, B and C v. Ireland

The American Universtiy International Law Review (Vol. 27, No. 2) published a comment "Reproductive Choice in the Hands of the State: The Right to Aboriton under the European Convention on Human Rights in Light of A, B & C v. Ireland" by Brynn Weinstein.

The Comment examines the reasoning of the ECtHR used in the case of A, B & C v. Ireland, particularly regarding A's and B's rights since the Court found violation of C's right. The author, however, points out the failures of the Court in applying - for example - the margin of appreciation test, the existence of "European consensus" in comparison with judgments such as Goodwin v. United Kingdom or Dudgeon v. United Kingdom.

Here is an exerpt of the introduction:

This 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 & C significantly limited women’s right to privacy under the Convention.