Neither Herald nor Fanfare: the Limited Impact of the ECHR Act 2003 on Rights Infrastructure in Ireland

With neither herald nor fanfare, the European Convention on Human Rights Act 2003 entered into force on 31 December 2003 and so, after decades of discussion, the European Convention on Human Rights had become transposed into Irish law and capable of use—through the prism of the Act—in domestic litigation. It is well known that the Act has had nothing close to the impact of its close cousin the Human Rights Act 1998 in the United Kingdom. Nor has it attracted the vitriol and political attention directed to that Act. Rather it has slid quietly and somewhat unspectacularly onto the statute books and into the legal system. More than ten years after it came into force it is opportune to ask what, if any, impact the European Convention on Human Rights Act 2003 has actually had in Ireland

Constitutionalizing Fetal Rights: A Salutary Tale from Ireland

In 1983, Ireland became the first country in the world to constitutionalize fetal rights. The 8th Amendment to the Constitution, passed by a referendum of the People, resulted in constitutional protection for “the right to life of the unborn,” which was deemed “equal” to the right to life of the “mother.” Since then, enshrining fetal rights in constitutions and in legislation has emerged as a key part of anti-abortion campaigning. This Article traces the constitutionalization of fetal rights in Ireland and its implications for law, politics, and women. In so doing, it provides a salutary tale of such an approach. More than thirty years after the 8th Amendment, it has become clear that Ireland now has an abortion law regime that is essentially “unliveable.” Not only that, but it has a body of jurisprudence so deeply determined by a constitutionalized fetal-rights orientation that law, politics, and medical practice are deeply impacted and strikingly constrained. This is notwithstanding the clear hardship women in Ireland experience as a result of constitutionalized fetal rights and the resultant almost-total prohibition on accessing abortion in Ireland. This Article argues that, wherever one stands on the question of whether legal abortion ought to be broadly available in a particular jurisdiction, constitutionalizing fetal rights leaves no meaningful space for judgment at either political or personal levels. Furthermore, constitutionalizing fetal rights can have unforeseen implications across jurisprudence and medical practice, creating a situation in which there is essentially no space for more liberal interpretations that respect women’s reproductive autonomy. While this may be desirable from an ideological perspective for those who hold a firm anti-abortion position, it is distinctively problematic for women and for politics

II. Grand Chamber of the European Court of Human Rights, A, B & C v Ireland, Decision of 17 December 2010

The use of ‘European consensus’ as a decision-making mechanism of the European Court of Human Rights has been condemned and praised in almost equal measure.1 On the one hand, some scholars argue that the way in which so-called ‘consensus’ is identified is generally unsound and lacking in rigour.2 It is also claimed that European consensus is overly subjective in its nature3 and, in any case, that it undermines the principle that the Convention has an autonomous meaning determined by the Court and separate to what member States do or interpret it as meaning.4 On the other hand there are scholars who, while often concerned with the suboptimal methodology adopted in identifying and using European consensus in the decisions of the Court, recognize the method's potential to increase the legitimacy of the Court and its function as a mechanism for the progressive liberalization of the European public order.5 This reflects the fact that, generally speaking, European consensus has been applied in order to establish an expanded scope of protection for the Convention in areas not expressly mentioned within it or contemplated at the time of its drafting, on the basis that there is an identifiable trend (although, in strict linguistic terms, not an actual ‘consensus’) among other European States to protect the alleged right