As I mentioned yesterday, we are now approaching the climax of the case. The first important finding by the European Court of Human Rights was that the notion of "private life" used in Article 8 of the European Convention was a broad concept, encompassing such things as the right to personal autonomy and personal development generally; gender identification, sexuality, and sexual life; a person’s physical and psychological integrity; and decisions both to have or not have children, or as to whether to become genetic parents.
None of that should be especially controversial and it should be enough to show that a law against abortion is interfering in private life, as understood in European human rights law. But that does not mean that Ireland's barbaric, theocratically-tinged anti-abortion law was simply struck down (as it would be under a truly robust human rights regime). Rather, the court reiterated its earlier view that the woman’s right to respect for her private life must be weighed against other competing "rights and freedoms", including those of the unborn child.
This is, of course, nonsense. An "unborn child", by which the court means an embryo or a fetus, is not the kind of thing that can have rights and freedoms. Until far later in pregnacy than we are talking about here, it does not even possess the capacity for pleasurable and painful experiences! It is not a sentient thing at all. Even when it attains sentience, it is not a person - it has no ability to make plans and decisions, to imagine itself as having a future, or to choose between options. Thus, it has no "rights" that it can either exercise or choose to waive and it has no "freedoms" that could be interfered with by the state or anyone else. Talk of the "rights" and "freedoms" of something like an embryo or a fetus is exactly the sort of facile, shallow rhetoric that we should be trying to keep out of these legal and policy matters.
Might the state nonetheless have some compelling interest in ensuring that all embryos and fetuses are brought to term - an interest so powerful as to justify a legal prohibition backed up by a life sentence? If so, it's difficult to imagine what this interest could be. Perhaps, I suppose, in a Battlestar Galactica situation, with the human species near extinction, it might be absolutely essential that as many babies be born as possible, in the interest of survival of the species itself. That, however, is hardly the situation in today's overpopulated world, and it's hardly surprising that no argument along those lines was put to the court!
Instead, the arguments were about enforcing the popular morality. But that's exactly one of the things that human rights should be protecting us from: from governments that attempt to enforce a popular morality against people, perhaps a minority, who don't accept it, and in the absence of some better reason relating to the secular welfare of its citizens, or perhaps of other sentient creatures, or to social survival, or some such thing. Something should be identified that could be accepted by people with a wide range of worldviews - religious, anti-religious, etc. - as being of compelling interest to the state and its officials. But of course, nothing like that was ever identified.
In the event, the court found against applicants A and B on the basis that the degree of interference with their private lives was provided for by law and was based on the Irish majority's, ahem, "profound moral values concerning the nature of life". But this is, again, nonsense. No government should simply be imposing the moral values of the majority, whether "profound" or shallow and superficial (as was obviously the case here). Governments in Western democracies should, on the contrary, be ensuring that both the majority and the minorities are able to live in accordance with their respective moral values. The government is not there to decide the correct moral values, all things considered, and impose them on those who disagree. It has more narrowly worldly, more mundane, tasks such as trying to maintain internal peace; defending against external aggressors; establishing a system of property, ownership, and commerce; providing an adequate economic safety net; and taking over such other secular functions as are entrusted to it democratically (for which it will need to raise taxes).
I must pay my taxes and comply with other elements of the secular law such as described in the previous paragraph, but that's all. The state should not be interfering with such private moral decisions as whether or not I, or my spouse or lover, will have an abortion. That is not the state's business. The most it should do is regulate abortion providers, much like other operations, to ensure that adequate standards of safety and competence are met.
Obviously this is not how it's seen in Ireland, where the government and the electorate apparently think it's okay to impose the majority's supposedly "profound" moral viewpoint, even to the extent of imposing a life sentence behind bars on those with the temerity to disagree. That is tyranny of the majority, not liberal democracy in action. Ireland is, to an extent atypical of countries that purport to be liberal democracies, heavily biased towards a theocratic approach that obviously has much popular backing.
Moreover, there's not much that European human rights law can do about it. To a large extent - not totally, but to a large extent - European human rights law is a toothless tiger, and this case demonstrates the point.
The one thing that can be said in favour of the European Convention and the European Court is that the latter gave an indication that it might not have been prepared to accept the Irish law if not for the safety valve that Ireland allows women to travel to other countries to obtain abortions. Ireland does not attempt to prohibit its citizens from having abortions in foreign jurisdictions where they are otherwise legal.
But in any event, applicants A and B failed. As the court put it:
Accordingly, having regard to the right to lawfully travel abroad for an abortion with access to appropriate information and medical care in Ireland, the Court does not consider that the prohibition in Ireland of abortion for health and well-being reasons, based as it is on the profound moral views of the Irish people as to the nature of life (paragraphs 222-227 above) and as to the consequent protection to be accorded to the right to life of the unborn, exceeds the margin of appreciation accorded in that respect to the Irish State. In such circumstances, the Court finds that the impugned prohibition in Ireland struck a fair balance between the right of the first and second applicants to respect for their private lives and the rights invoked on behalf of the unborn. (para 241)
On the other hand, applicant C succeeded in her case against Ireland. We'll get to that next time.