Article on "abortion on demand" and the case-law of the Court

from www.guardian.co.uk

Grégor Puppinck, director of the European Center for Law and Justice has published a guest article on EJIL: Talk! on ECtHR case-law concenring "abortion on demand". "The purpose of this article is firstly to identify the rationale of the Court on the matter of abortion, and secondly to observe how it applies to the vast majority of abortions practiced, i.e. “abortion on demand”, also called on request:  abortions that are not justified by a matter of health, life or rape, but by the free will of the woman." The article raises two main concerns of which I would like to reflect to:

Firstly, the author correctly emphasises - referring to A, B and C v. Ireland - that "States can allow it for the sake of competing rights guaranteed by the Convention". However he fails to recognise what the Court really said, namely that

there is indeed a consensus amongst a substantial majority of the Contracting States of the Council of Europe towards allowing abortion and that most Contracting Parties have in their legislation resolved the conflicting rights of the foetus and the mother in favour of greater access to abortion. [P. and S. v. Poland, 57375/08, § 97, 30 October 2012]

I think this is importan as Puppinck justifies his reasoning by some kind of grateful tolerance on behalf of the Court towards abortion. But this is not the case, the ECtHR only recognised the european consensus which shall be taken into account as a development within the legislation of the Member States of the CoE. This is not the grace of the Court since it cannot rule - ans this was the case of the former abortion judgments when it rejected to recognise some basic access rights to abortion services - against the will of the majority of the state.There shall also be reference to the judgment in Costa and Pavan v. Italy where the Court expressly emphasised the difference between a born child - as bearer of rights - and the unborn foetus or embryo. It stated as follows:

La Cour n’est pas convaincue par ces arguments. Tout en soulignant que la notion d’« enfant » ne saurait être assimilée à celle d’« embryon », elle ne voit pas comment la protection des intérêts évoqués par le Gouvernement se concilie avec la possibilité ouverte aux requérants de procéder à un avortement thérapeutique lorsqu’il s’avère que le fœtus est malade, compte tenu notamment des conséquences que cela comporte tant pour le fœtus, dont le développement est évidemment bien plus avancé que celui d’un embryon, que pour le couple de parents, notamment pour la femme [...]. [Costa and Pavan v. Italy, no. 54270/10, § 62, 28 August 2012]

Secondly, the author suggests a very terrifying solution for opposing abortion:

Possibly, one day a father or grand-parent of an unborn child will complain before the Court and succeed to save the life of their child. All that such a father or grandparent has to do is to fax a letter to the Court under article 39 of the Rules of the Court, requesting it to take urgent and interim measures in order to avoid the realization of a serious and imminent risk of breach of a fundamental right. All they have to do is to request that the rights to life (art. 2) and to physical integrity and dignity (art. 3) of their unborn child or grand-child be preserved, and that their right to family life (art. 8) be protected. The relatives of the unborn child could successfully obtain from the Court an order to suspend the procedure of abortion, if they demonstrate that this abortion is not justified by a proportionate motives guaranteed by the Convention; they may also inform the Court that they are ready to rear the child. This procedure has never been used yet to stop an abortion, but it could be an effective way to save lives. It would be in continuity with the original meaning of the Convention and with the Court’s own case-law.

The mentioned possibility envisages a very cruel and severe interference with the right to respect of private life of the pregnant woman, and - furthermore - represent a clearly sexist opinion towards reproductive rights of women.