Linda Greenhouse, the veteran New York Times Supreme Court reporter, takes a look at a case from the European Union that offers a glimpse of what might happen if the Supreme Court’s Decision in Roe v. Wade were overturned:
Irish law prohibits all abortions except those necessary to save a woman’s life, and as a practical matter it imposes daunting obstacles to terminating life-threatening pregnancies as well. In a secularized Europe, Ireland is noticeably out of step. Of the 47 countries covered by the European Convention on Human Rights, only in the fairytale countries of Andorra, Malta and San Marino, where all abortions are illegal, is the law any stricter.
So a decision earlier this month from the European Court of Human Rights in the Case of A, B, and C v. Ireland, promised to be of more than routine interest. A challenge to the Irish law brought by three women asserting rights under the European Convention, it held the potential to express a Continent-wide consensus that abortion rights are human rights.
Instead of taking the opportunity to do that, though, the European Court ruled against the Plaintiff’s, refused to find a Continent-wide right to abortion, and upheld Ireland’s strict laws against abortion:
No right under the Convention was violated in these two instances, the court said by a vote of 11 to 6. Granted, “the process of traveling abroad for an abortion was psychologically and physically arduous” for these women. And granted also that in their particular circumstances, they could have obtained legal abortions in 35 to 40 other countries covered by the Convention. But because Ireland’s law is based “on the profound moral views of the Irish people as to the nature of life,” the court said, Ireland was entitled to an extra “margin of appreciation.” This phrase expresses a measure of deference toward a country’s right within the framework of international law to chart its own domestic course. With its extra margin, Irish law prevailed.
The women’s lawyers had asked the court to take account of the strong trend toward liberalizing European abortion laws, demonstrating, they argued, the existence of a consensus on a matter of international human rights.
The court did take the European consensus into account. But, perversely, it used that fact not on the women’s behalf, but against them, emphasizing Irish women’s ability to travel to any of dozens of countries, with “no legal impediment,” to end their pregnancies. Given that ability, the court concluded, Irish law “struck a fair balance.”
As Greenhouse notes. this is essentially what the state of the law would be in the United States today if Roe had never been decided:
Obviously, not all states would choose to join the anti-abortion bandwagon, even if they had the Supreme Court’s permission. California, New York, the District of Columbia, Connecticut and Massachusetts (once two of the most anti-abortion states, but times change) would remain places of refuge for desperate women, Englands to the Irelands that are Wyoming (which has no abortion provider), the Dakotas, or the Deep South, where a shrinking handful of doctors provide abortions in a hostile regulatory climate. More than a third of all women live in counties without an abortion provider, and that number is growing. Long-distance travel is made more onerous in the half of the states that require 24-hour waiting periods after “counseling,” necessitating two trips or an overnight stay.
Yet abortion remains one of the most common of all medical procedures. Nearly a quarter of all pregnancies end in abortion; put another way, nearly half of all pregnancies are unintended, and of those, 40 percent are terminated. One out of every three American women will have an abortion by the age of 45.
And if they can’t get the care they seek at home, where will they go? As the European Court of Human Rights seems to assume, there is always the airport.
Or the train, bus, or car. Now someone who is a strong supporter of abortion rights like Greenhouse will find this unacceptable. but I have to wonder, given the weakness of the intellectual basis of the Court’s argument for a 14th Amendment right to abortion in the Constitution, is it really such a bad thing that this matter be left to the states?
What’s even more interesting is the fact that the European Union, which is typically seen as further to the left than the United States, has rejected an argument that our courts accepted almost 40 years ago. Granted, the legal issues are different and Ireland’s claims to the sovereign right to write it’s own laws is stronger than, say, a similar claim made by the State of Texas. Nonetheless, one has to wonder whether this case in Europe will have an impact on how American courts view the issue the next time it comes before them.
