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Ireland’s Protection for the Unborn Under Attack in the ECHR

William Saunders ECHRTomorrow, the European Court of Human Rights (ECHR) is hearing arguments in ABC v. Ireland, a case challenging Ireland’s protection of unborn life.  Americans United for Life played an active role when Ireland, by popular referenda, guaranteed the right to life to the unborn members of its nation.  This week, as an advisor to the case, Senior Vice President of Legal Affairs, William Saunders, is in Strasbourg for the arguments.

There is no merit to the plaintiffs challenge.  The European Convention on Human Rights (the Convention), ECHR case law, and international norms all permit Ireland to protect the unborn as it does through its laws.  However, there are troubling signs that what should be an open and shut case for Ireland is about to become the “Roe v. Wade“ of Europe.

Until 2007, under settled principles such as subsidiarity, member nations of the European Union had been able to address difficult issues surrounding abortion without interference by the ECHR.  The 2007 decision in the case of Tysiac v. Poland showed a willingness of the ECHR to abandon settled principles of jurisprudence towards creating “a right to abortion.”

The Court’s decision to even entertain arguments at this time is a bad sign that such an abuse is about to happen.  Article 35 §1 of the Convention requires complete exhaustion of domestic remedies before the Court can even hear a case.  ABC v. Ireland should have already been dismissed on these procedural grounds alone.

While dismissal is warranted, it is an unlikely outcome given the highly unusual development in the process of the case.  Before the lower chamber reached a decision in ABC v. Ireland, the matter was referred to the Grand Chamber.  Bypassing the normal process, the Court may be preparing to issue what it considers an “historic” decision.