The European Court of Human Rights minority opinion would have overturned Ireland’s abortion laws, as these depart from a “European consensus” on human rights.
In multi-judge courts across the world, when there is disagreement amongst the judges, it is common for the minority judges to write a dissenting judgment, known as a “dissent.”
The dissent in the European Charter on Human Rights dispute about Irish abortion law was published yesterday. The dissenting judges argued that Irish abortion law contravenes the Charter, in part because there exists a “European consensus” that “the right to life of the mother… [is] more valuable than the right to life of the foetus.”
This position differs from Irish law, which states that the mother’s life and that of her unborn child have equal weight.
The idea of a “European consensus” suggests that constitutional traditions or rights that contradict European norms might be smoothed over in the future. The dissent states:
“It emerges clearly from the material in our possession that there exists a consensus amongst a substantial majority of the Contracting States of the Council of Europe towards allowing abortion ‘on broader grounds than accorded under Irish law’… Only 3 States have more restrictive access to abortion services than in Ireland namely, a prohibition on abortion regardless of the risk to the woman’s life”
The judges conclude that “in the case before us a European consensus (and, indeed, a strong one) exists” and argues that this fact should “significantly narrow Ireland’s “margin of appreciation” (right to decide its own laws) on the issue.
The majority opinion – which upheld the substance of Irish abortion law – acknowledged the “profound moral views” of Ireland on abortion. The dissenters disagreed:
“Even assuming that these profound moral views are still well embedded in the conscience of the majority of Irish people, to consider that this can override the European consensus, which tends in a completely different direction, is a real and dangerous new departure in the Court’s case-law. A case-law which to date has not distinguished between moral and other beliefs when determining the margin of appreciation which can be afforded to States in situations where a European consensus is at hand.”
The dissent raises an odd additional grounds for permitting abortion in wider circumstances: the fact that a mother participates more in human society than a foetus.
“On the one hand there are the rights of a person already participating, in an active manner, in social interaction, and on the other hand there are the rights of a foetus within the mother’s body, whose life has not been definitively determined as long as the process leading to the birth is not yet complete, and whose participation in social interaction has not even started.”
For an analysis of the judgement itself, see our piece here.