Pressure is currently being brought by the Council of Europe to get Ireland and Poland to authorise abortion. Today, these two European countries prohibit the termination of pregnancy "except when it is deemed strictly necessary by doctors to save the life of the mother," points out Grégor Puppinck, director of the European Centre for Law and Justice (ECLJ), in an article. But this legislation could be modified.
In Ireland, the government recently announced that a bill would be studied in 2013 to define the conditions in which it would be possible for a woman to terminate her pregnancy. This bill comes as Ireland’s response to its condemnation in December 2012 by the European Court of Human Rights (ECHR) which ruled that Ireland’s "legislation is not clear because it did not allow a pregnant woman wanting an abortion to know if she could benefit from an exception to the prohibition of abortion.". Grégor Puppinck says that "this case is the reference jurisprudence of a series of cases brought against Ireland and Poland in which women complained of the impossibility of having an abortion, notably due to the refusal of doctors."
But, more generally, he points out that "these cases result from the confrontation between the approach of women who request abortion as if it were an individual right and the approach of doctors and the State which lays down conditions for access to abortion based on objective criteria notably involving the life and the health of the mother." With these rulings, he adds, the CRHR considers that "when the State decides to authorise abortion even if only in exceptional cases, it must then draw up a precise legal framework and a reliable procedure that enable women to effectively exercise their ‘right’ to abortion."
In concrete terms, to execute these rulings in compliance with the recommendations of the ECHR, the director of the ECLJ explains that "Ireland and Poland will set up a decision-making body to which women wishing to abort can apply." To do so, Ireland will "probably" follow the example of Poland which, following its condemnation in March 2007 "set up a ‘committee of experts’ with the role of deciding in individual cases if the legal conditions were met to carry out an abortion." Moreover, "this committee will necessarily interpret these conditions and allow them to evolve."
But the exact composition of this committee is being debated in the Council of Europe, focussed on the question of the proportion of doctors compared to members from other professions such as jurists, associations, etc. Grégor Puppinck points out that "this question is important because doctors have a scientific, objective and concrete approach to the causes that might justify an abortion". In contrast, "jurists and political organisations regard abortion more from the abstract angle of individual freedoms." Hence, "the debate on the composition of these committees involves the definition of the nature of abortion, regarded either from a concrete and medical point of view, or from an abstract point of view, as an individual freedom. If abortion is an individual freedom, its exercise will inevitably lead to conflict with doctors whose decision-making power is regarded as an illegitimate obstacle" and "this confrontation is exacerbated when doctors invoke their freedom of conscience to refuse to carry out an abortion."
Furthermore, the director of the ECLJ raises another point concerning an eventual decision to refuse an abortion, the only decision for which a legal appeal is allowed in the courts. He points out that "the refusal decisions of this committee will have to be rapid, justified and in writing to allow an appeal to be lodged in court. Thus, the final decision to authorise abortion will no longer belong to the doctors nor even to the committee of experts, but to the judge who will interpret the criteria for allowing access to abortion." But, "this decision-making mechanism contains no safeguards against the risk of the wrong interpretation of the legal conditions of access to abortion," and he adds that "however, the pressure to do so will be very strong, notably from European and international bodies." As a result, says Grégor Puppinck, "the ultimate power to interpret the conditions of access to abortion will be progressively transferred to the judiciary, and hence ultimately to the ECHR." The latter will issue rulings "on the validity of the refusal decisions taken by the committees." Grégor Puppinck concludes that "this will then offer it a new opportunity to advance the right to abortion in Ireland."
The director of the ECLJ says that the ECHR has such an influence that "finally, the regulation of abortion is progressively taken away from legislators" […] "whose decision based on principle to permit or refuse abortion is no longer truly sovereign, since all the Court has to do is to declare that there exists a ‘right to abortion’ in Ireland for this affirmation to be regarded an authentic new interpretation of the Irish Constitution," even though on three occasions, in 1983, 1992 and 2002, Ireland voted against abortion in a referendum.
In the light of this development, Grégor Puppinck asks: "Why is there such pressure brought to bear on Ireland and Poland when these two countries are among the best in the world when it comes to maternal health care, far ahead of France and the United States? Why transfer to a judge the responsibility of the doctor when the appreciation of the medical need for an abortion depends on the scientific competence of the doctor? Why is it urgent to legalise abortion? Why has the Ministerial Committee classified the monitoring of these cases as a ‘priority’ whereas so many serious cases of torture, disappearances and killings are handled at a leisurely pace?" Grégor Puppinck opines that this evolution is "probably" due to the fact that "abortion profoundly determines our culture: its legalisation is regarded as a rite of passage in postmodernity, as it implies the domination of the individual will over life, the triumph of subjectivity over objectivity." But the director of the ECLJ concludes by pointing out that "this process is not inevitable, as it depends on the strength of the political will of the Irish and Polish governments which can remind the Council of Europe that their countries never committed themselves to legalise abortion when they ratified the European Convention on Human Rights."