Procedural abortion rights: Ireland and the European Court of Human Rights

Abstract

The Irish Protection of Life During Pregnancy Act seeks to clarify the legal ground for abortion in cases of risk to life, and to create procedures to regulate women’s access to services under it. This article explores the new law as the outcome of an international human rights litigation strategy premised on state duties to implement abortion laws through clear standards and procedural safeguards. It focuses specifically on the Irish law reform and the jurisprudence of the European Court of Human Rights, including A. B. and C. v. Ireland (2010). The article examines how procedural rights at the international level can engender domestic law reform that limits or expands women’s access to lawful abortion services, serving conservative or progressive ends.

Résumé

En Irlande, la loi sur la protection de la vie pendant la grossesse cherche à préciser les motifs légaux d’avortement en cas de risque pour la vie et créer des procédures pour réguler l’accès des femmes aux services en vertu de la loi. Cet article examine la nouvelle législation comme aboutissement d’une stratégie de litige relative aux droits de l’homme internationaux se fondant sur l’obligation des États à appliquer la législation sur l’avortement avec des normes claires et des garanties procédurales. Il se centre précisément sur la réforme de la loi irlandaise et la jurisprudence de la Cour européenne des droits de l’homme, notamment l’affaire A. B. et C. contre Irlande (2010). L’article analyse comment les droits procéduraux au niveau international peuvent engendrer une réforme du droit national qui limite ou élargit l’accès des femmes à des services d’avortement légal, guidée par des objectifs conservateurs ou progressistes.

Resumen

En Irlanda, la Ley de Protección de la Vida durante el Embarazo busca aclarar el fundamento jurídico para tener un aborto en casos de riesgo a la vida, y crear procedimientos para regular el acceso de las mujeres a los servicios bajo esta ley. Este artículo explora la nueva ley como el resultado de una estrategia de litigio en derechos humanos internacionales basada en los deberes estatales de aplicar las leyes referentes al aborto mediante normas claras y salvaguardias procesales. Se enfoca específicamente en la reforma de las leyes irlandesas y en la jurisprudencia del Tribunal Europeo de Derechos Humanos, que incluye A. B. y C. contra Irlanda (2010). El artículo examina cómo los derechos procesales a nivel internacional pueden engendrar una reforma nacional de leyes, que limita o amplía el acceso de las mujeres a servicios de aborto legal, con fines conservadores o progresistas.

Keywords:

• abortion law and policy
• human rights
• litigation
• legal reform
• Europe

On 1 January 2014, a new abortion law came into effect in Ireland.¹ With the Protection of Life During Pregnancy Act, abortion remains criminally prohibited in the country except where pregnancy endangers a woman’s life, including through a risk of suicide. The new law and its regulatory instruments seek to clarify this narrow exception, and create procedures to regulate women’s access to services under it.

This article explores this new Irish law as the outcome of a transnational litigation strategy premised on state duties to implement abortion laws through clear standards and procedural safeguards.^2,3 The strategy recognizes that no criminal abortion law — however restrictive or liberal in its grounds — can ensure access to services without implementing standards and procedures. This is because legal grounds tend to be written in vague terms, which breeds both uncertainty and disagreement among women and doctors, and rarely is any opportunity provided for review or appeal.

Advocates have thus turned to procedural rights on behalf of women as a means to implement legal grounds for abortion and to secure their access to services. This article focuses on the turn to procedure at the European Court of Human Rights. In a series of cases beginning in 2007, the Court affirmed positive obligations on the state to ensure that women can access services to which they are lawfully entitled. This case law includes A. B. and C. v. Ireland (2010),⁴ where the European Court held the state in violation of its human rights obligations for failing to provide effective and accessible procedures that allow a woman to establish her right to a lawful abortion in Ireland. The new law responds to this judgment.

All of the European Court’s procedural cases concern access to services in two countries, Ireland and Poland, where abortion carries a symbolic importance, bound to conflicts over the very identity of the nation-state. These cases raise a fundamental question of how an international human rights court can engender change on an issue of deep democratic conflict. Procedural rights are offered in answer. By obligating states to make effective rights to abortion already recognized in national law, procedural rights allow the European Court to work through rather than against the state, and to enlist its democratic forces and institutions in the effective protection of reproductive rights.

This article tests the theory of procedural abortion rights against the recent legal reform in Ireland. It examines the Protection of Life During Pregnancy Act, legislation designed to implement the European Court judgment in A. B. and C. Less than one year since enactment, the article explores public debate and controversy over the law. Liberalization advocates fear the law re-entrenches the criminalization of abortion and that its procedures defeat whatever minimal access the law formally allows. Conservative critics fear the law is a ‘Trojan Horse,’ which women and health professionals will use to progressively expand access into a liberal regime. The legacy of procedural abortion rights hangs in the balance.

The procedural abortion rights jurisprudence of the European Court

In Tysiąc v. Poland (2007),⁵ a woman claimed that she was wrongfully denied a lawful therapeutic abortion in violation of her human rights. Ms. Tysiąc, fearful of losing her eyesight after a third delivery, claimed that doctors had wrongly denied her an abortion to avert a risk to her physical health as allowed by Polish law.⁶ In its judgment, the European Court did not address whether Ms. Tysiąc was entitled to an abortion under Polish law, nor whether the European Convention on Human Rights itself guarantees any right to abortion. Rather the Court reasoned that because Polish law recognized a right to therapeutic abortion, the case was better decided from the perspective of what the state is positively required to do to effectively guarantee this right.

Polish law provided women with no opportunity to challenge a denial of services, nor did it offer physicians any security against criminal prosecution for the provision of services. These circumstances, the European Court reasoned, both allowed doctors to deny services arbitrarily and, in what is referred to as the “chilling effect”, made doctors cautious and reluctant to provide services. Viewed as a whole, the legal system worked to deny rather than protect women’s access to lawful services. The European Court thus declared the Polish state in violation of its human rights obligations, reasoning that “[o]nce the legislature decides to allow abortion, it must not structure its legal framework in a way which would limit real possibilities to obtain it… the applicable legal provisions must, first and foremost, ensure clarity of the pregnant woman’s legal position” (para 116).

In A. B. and C. v. Ireland (2010),⁴ Applicants A and B argued but lost a challenge to broaden the legal grounds for abortion. In Ireland, prior to the Protection of Life During Pregnancy Act, there was no statutory exception to a strictly worded criminal prohibition.⁷ Fearing that a court might read liberal exceptions into the prohibition, the Constitution of Ireland was amended in 1983 by popular referendum. By Article 40.3.3, what is known as the 8th Amendment, the Constitution now provides: “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”⁸ As interpreted by the Supreme Court of Ireland, this provision allows for abortion only if there is a real and substantial risk to life, as distinct from the health of the woman.⁹

Applicant C in the case suffered from a rare form of cancer, but because of the chilling effect of the law, could not receive accurate information about the risks of pregnancy for her prognosis and treatment. Believing that without this information she could not qualify for a lawful abortion in Ireland, she travelled to England to terminate her pregnancy. The European Court held the Irish state in violation of its human rights obligations, once again for failing to provide criteria or procedures that would allow a woman to establish her right to a lawful abortion in Ireland.

After A. B. and C., the European Court decided two more cases in the procedural paradigm: both successful and both against Poland. In R.R. v. Poland (2011),¹⁰ the applicant was denied information about the risks of her pregnancy, specifically the risks of fetal impairment, which is a ground for abortion under Polish law. Her persistent efforts to access antenatal tests were marred by procrastination, confusion and deliberate obstruction by doctors and hospital administrators. This delayed the diagnosis and so disqualified her from a lawful abortion within the statutory time limit. Though recognizing that the delay of services came at the hands of reticent doctors, the European Court attributed the rights violation to the state, its failure to protect women against the obstructive actions of private actors. The Court again affirmed, “If the domestic law allows for abortion in cases of foetal malformation, there must be an adequate legal and procedural framework to guarantee that relevant, full and reliable information on the foetus’ health is available to pregnant women” (para 200).

P. and S. v. Poland (2012)¹¹ concerned a 14-year-old girl whose formal right to access a lawful abortion for reason of rape was uncontested, though she encountered resistance in what the European Court called the “procedural and practical modalities of exercising this right” (para 83). These included additional requirements for certification, mandatory waiting periods and counselling, including by a physician-summoned Roman Catholic priest, and conscientious refusal by a hospital administrator to allow the procedure in a facility, which forced the young woman to receive services in a hospital more than 500 kms from her home. Once again the European Court held the Polish state in violation of women’s human rights for its systemic failure to enforce the abortion law and to regulate private action seeking to frustrate women’s access. Moreover, in both R.R. and P. and S., the European Court emphasized the vulnerability of the women in seeking services, and reasoned that the deliberate frustration of their access additionally violated their rights to be free from inhuman and degrading treatment.

The theory of procedural rights in the European system

On this reading of the case law, the European Court turned to procedural abortion rights to vindicate claims brought by advocates seeking to expand access to abortion services, thus breeding criticism that the cases were “an attempt to promulgate a full-fledged ‘Right to Abortion’–not openly, but through the backdoor” (p. 126).¹² At the same time, many reproductive rights supporters expressed disappointment with the procedural cases; the European Court was thought to be in retreat from abortion rights that recognize and affirm the critical importance of reproductive control to women’s lives.^13,14 In its abortion jurisprudence generally, the Court was described as unwilling to “come off the fence” and advance the law in this area.¹⁵

It is difficult, however, to predict the effect of procedural rights from doctrine alone. To read the European Court’s case law apart from the political context in which it was delivered and in which it seeks to have effect is to miss, or rather to misinterpret, critical features of it. Human rights practice is located between the technical art of legal reasoning and the realities of political conflict.¹⁶

All of the Court’s procedural cases involve Poland or Ireland as the respondent state. Democratic conflict over abortion runs deep in both countries. The collapse of communism in Europe and the rise of a new Catholic conservatism sparked renewed debates over abortion in the former Eastern Bloc. Abortion in Poland became a symbol of political transformation, marking the Catholic Church’s role in public life, and the Christian character of the Polish state.^17,18 Abortion carries a similar national burden in Ireland. The 1983 constitutional amendment that affirmed the right to life of the unborn drew on Ireland’s religious-cultural traditions — traditions that historically marked its sovereignty from England.^19,20 In both countries, abortion rights are portrayed in popular and political discourse not only as hostile to the religious establishment, but threatening to the very foundations of the nation state. The national importance of abortion in Poland and Ireland leads the European Court to tread lightly. Within the European system, states retain the primary responsibility for rights protection, reflecting the fact that human rights, and especially reproductive rights, often concern matters that elude consensus in a pluralistic Europe. This principle finds expression in the European Court’s margin of appreciation doctrine, through which the Court has historically given states wide discretion over their abortion laws.

In A. B. and C., the Court relied on the doctrine to deny the direct challenge to Ireland’s criminal law, reasoning that abortion is a moral issue on which no European consensus exists, but more so, an issue that has raised complex, lengthy and sensitive debate in Ireland. In the judgment, the Court reviewed the many political processes and consultations on abortion in Ireland, defending the margin of appreciation on the quality of democratic deliberation. State authorities were claimed better situated than an international judge to balance the competing rights in abortion regulation.

Reproductive rights supporters critiqued the Court’s use of the margin of appreciation doctrine in A. B. and C. as a gesture of state deference, pure and simple,^21,22 and in the Court’s general turn towards procedural rights, this critique followed. Like the margin of appreciation, procedural rights are a legal technique of deference or avoidance,¹⁴ a claim supported by the European Court’s own nod to the modesty of its intervention. In A. B. and C., the Court reassured the state that meeting its obligations under procedural rights asks no more of it than to make effective rights already recognized in Irish law.

Yet procedural rights, in effect, do more. In its jurisprudence generally, the European Court has refused to assess the general validity of domestic abortion laws against international human rights standards. The earliest cases in the European system, men challenging newly enacted liberal laws for their effect on the “future of the nation” were declared inadmissible on this basis.²³ The Court has remained committed to its mandate of individual justice, granting relief that is particular to victims and to the violations of their human rights. The appeal of procedural rights, however, is that their violation demands structural reform. Delay or denial of lawful abortion services is attributed not to the aberrant actions of a few wayward individuals, but to a systemic failure of the legal system to ensure women’s access. Through procedural rights, the European Court imposes a positive obligation on the state to effectively prevent violations of women’s access rights. Moreover, by explaining how the state currently fails in this obligation, the Court implicitly guides the state on the reform of its laws and the enactment of administrative and procedural protections. Most importantly, states interpret the European Court’s judgments of structural violations in this way, as a directive to change their laws, and most states follow in reform.

On this theory, procedural rights in the European system work by respecting the democratic expression of abortion rights in national law, while at the same time enlisting the state and its institutions in making these rights effective.²⁴ In procedural rights, the European Court seeks to work through rather than against the state, to re-engage rather than alienate it from the project of human rights. Procedural rights move aside intractable conflicts over abortion rights, and ask the state to return, to reconsider, and to deliberate how it can respect, protect and enforce women’s reproductive rights. The aim is to embed women’s human rights within the political and legal systems of the state.²⁵

This impulse can be seen in the European Court taking sides, as it were, with national institutions favourable to the protection of reproductive rights. In A. B. and C., the European Court deliberately notes the regret expressed by the Irish Supreme Court that no legislation had yet been passed to regulate lawful abortion in the country. Throughout the judgment, the Court shares its authority with national institutions like the Supreme Court, blending their calls with its own for legislative clarity and procedures to make effective the right to abortion as guaranteed by domestic law.

In theory then, procedural rights are essential to making human rights effective. If the European Court is to address systemic violations of reproductive rights in the everyday denials and delays of lawful abortion, it must build up domestic systems and institutions of rights protection.

The practice of procedural rights in Ireland

The recent legislative reforms in Ireland test the theory of procedural abortion rights on the ground and in practice.²⁶ Following A. B. and C., the Irish government appointed a group of medical and legal experts to study the judgment and to recommend options for its implementation. Their report was long overdue when tragic circumstances intervened. Savita Halappanavar died in an Irish hospital after being refused an abortion following a miscarriage. An investigation into her death found that the treating doctors believed because the fetus, while unviable, still had a beating heart, their “hands were tied” in managing the risk of infection and sepsis.²⁷ The investigation specifically named the lack of guidance on lawful abortion as a contributing factor in the doctors’ decision-making.

The death led to nationwide protests calling for reform. The injustice of the abortion law in Ireland could no longer be denied or ignored. Public outrage eclipsed the European Court’s A. B. and C. judgment, and quieted criticism accusing the Court of usurping Irish democratic processes. The judgment was now seen as guiding rather than imposing change demanded by the Irish people. Within weeks, the Irish government released its expert report on the A. B. and C. judgment,²⁸ and the Irish Human Rights Commission followed, announcing its own review of government action and inviting comment from civil society.²⁹ Draft legislation was proposed, and a series of public hearings held.^30,31 The Protection of Life During Pregnancy Act was passed and signed on 30 July 2013 and came into force on 1 January 2014.

The debate and controversy over the law reveal much about how procedural abortion rights work in practice. Before its passage, liberalization advocates feared the Irish government would use procedural rights to restrict rather than open access. Conservative critics claimed that procedural rights would incrementally expand access, bringing in a liberal regime through the back door. Over the last year, the concerns of both sides proved to have merit, albeit in different ways.

Liberalization advocates argue that the legislation does not reflect access to lawful abortion as a “right”. Rather the Act foremost reaffirms the criminal prohibition on abortion in Ireland, and then articulates specific exceptions to that prohibition and sets procedures to strictly confine their application. Its procedural measures, in other words, are as much a measure of control as of permission. This emphasis is consistent with if not sanctioned by the European Court’s procedural judgments, which require only that the relevant standards and procedures of an abortion law be fair and afford due respect to the interests safeguarded by it, which in Ireland include the constitutional rights to life of both the unborn and pregnant women. The Irish legislation bears down on this point, reflected in its very title which once read, the “protection of maternal life”, but now generically refers to the “protection of life during pregnancy”. The law emphasizes that any consideration of lawful termination of pregnancy must have “regard to the need to preserve unborn human life as far as practicable”. No equal legislated concern is expressed for the lives of pregnant women. Rather the law provides them with “certainty” as to whether they require an abortion or not. In fact, the administrative machinery of the Irish legislation is almost indistinguishable from that designed and used in countries worldwide to curb and control access, that is, to ensure that legal grounds for abortion are narrowly interpreted and strictly applied.³²

Primary among its procedures are certification and review. Under the Irish law, aside from emergency situations, an obstetrician and a relevant specialist, having each examined the pregnant woman, must jointly certify that there is a “real and substantial risk” to her life from a “physical illness” which can only be averted by termination of pregnancy. In the case of risk to life by way of suicide rather than physical illness, the agreement of three specialists is required. If certification is refused, a woman may apply in the “prescribed form and manner” for a review of the decision.

Liberalization advocates argue that these procedures in practice will not prove accessible and effective, but excessively burdensome and intrusive. They will delay and deter rather than facilitate women’s access to lawful services, an emphasis of the Irish Human Rights Commission’s report.²⁹ The repeated examinations a woman may be subjected to under the legislation, particularly in the case of a risk to life from suicidal intent, and with no therapeutic purpose, may themselves inflict suffering and anguish. That a woman may upon denial seek a second or any number of subsequent opinions, looping through the process again and again, is presented as an entitlement, rather than the likely predicament of socially vulnerable and disadvantaged women. Even to enter the process, the legislation empowers a general practitioner to refer a woman for certification or not, but gives her no protection in the exercise of this discretion. The pathways to certification and appeal, when drawn in flow-charts, belie their burdens.

European Court of Human Rights

In August 2014, the unfairness of these procedures moved from argument to reality with the “Miss Y” case, when human suffering once again intervened on legal debate.³³ Though facts of the case remain disputed, and it is currently the subject of an internal government inquiry, Miss Y is a young woman with limited English language skills who learned of her pregnancy, a consequence of rape, upon arrival in Ireland seeking asylum. She was 8 weeks pregnant at the time. She sought to leave the country to access lawful services but could not because of her immigration status and the cost of this endeavour. At 16 weeks pregnant, Miss Y attempted to take her own life. A friend assisted her to contact a general practitioner, and at 24 weeks, she was referred for assessment and certification. She was granted a termination of pregnancy under the law, but by caesarean section. Rather than avert the risk of suicide, Miss Y refused food and water. She sought death rather than delivery. A court order was issued for forced hydration, and another was threatened for the caesarean delivery itself. Under these conditions, Miss Y acceded. A caesarean section was performed, and a child born, delivered into the neonatal intensive care, and under the care of the State. The case was widely criticized, an indictment not only of the dysfunction, but the cruelty of the Irish law.³⁴

The interpretation of the Act to authorize a caesarean delivery suggests a narrowing of the legal grounds for abortion in Ireland. This suggestion was affirmed in September 2014, when the government published a guidance document for health professionals on implementation of the Act.³⁵ The guidance notably sets a third distinct branch to the certification test. The risk to life must be one that can only be averted by termination of pregnancy, and in arriving at this opinion the medical practitioners must have “regard to the need to preserve unborn human life as far as is practicable”. This now distinct consideration requires clinicians to assess “the most appropriate procedure by which a termination of pregnancy is to be carried out, in cognizance of the constitutional protection afforded to the unborn, i.e. a medical or surgical termination or an early delivery by induction or caesarean section (p.31)”. In other words, if there is a medical procedure, in the course of which an unborn life may end but may also be saved, it must be considered if not preferred. Must the woman’s life or dignity be considered in this clinical assessment of the most appropriate procedure? The Guidance says not.

The most recent development of the health professional guidance reveals a further danger in procedural rights. It is that the answer to dysfunction and unfairness in criminal abortion laws is to provide more clarity, more standards, and more procedures. The danger of procedural rights is that they will be used to build ever more elaborate administrative machinery, legitimating if not entrenching fundamentally unjust criminal abortion laws. This danger arises from the fact that procedural rights are problematically premised on a belief that legal grounds within criminal prohibitions can be made more transparent and accessible. Yet this is rarely true. Legal grounds do not correspond to objective facts about the world. Rather as exemptions from criminal sanction, legal grounds reflect moral judgment. In A. B. and C., for example, the applicant argued that a “legal distinction, without more, between a woman’s life and her health was an unworkable distinction in practice” (para 178). A woman’s qualification for a lawful abortion is often as much a medical as a moral determination. Yet the promise of clear and certain legal grounds promises a degree of objectivity, which may not in fact exist.

This was the subject of controversy with respect to the certification of abortion in cases of suicidal intent, with diverging opinions within the psychiatric profession itself. A separate standard of certification, for example, requiring three rather than two specialists, reflects problematic assumptions about clinical diagnostic uncertainty in psychiatry, and an exaggeration of diagnostic certainty in physical medicine.³⁶ More striking, however, is that the certification standard itself does not reflect clinical practice. The emphasis that termination be the “only” intervention to save life requires a degree of certainty simply not attainable in medicine. These are the absolutes of moral judgment. The standard also suggests a profound misunderstanding of the psychiatric management of suicidal intent, where abortion is never an indicated treatment, but always something requested by a woman herself. In other words, it is the woman who identifies need, leaving the medical professional to certify eligibility based on her request. The law’s denial of this clinical reality itself reflects a moral judgment, which led some psychiatrists to campaign for the exclusion of suicide as a ground for lawful abortion, and others, including the College of Psychiatry in Ireland, to refuse to pervert their professional role and serve as “social police” under the law.³⁷ Through a pretense to objective, clinical standards, procedural rights hide the moral judgment of the law and make it more rational, less threatening, and so more acceptable than it otherwise is or should be. Procedural rights can thus frustrate efforts to repeal abortion laws, whether toward more liberal or restrictive ends.

That is why, paradoxically, conservative critics of the Act also emphasize that legal grounds are malleable, even manipulable, in moral judgment. They fear the legislation is too vague, and that through patient-doctor collusion, particularly with respect to threatened suicide, the grounds for lawful abortion will expand.³⁸ Critics thus speak of the legislation as a Trojan Horse, which not tomorrow or the next day, but over time will lead to ever more permissive attitudes and practice on abortion.³⁹ Scholars and advocates have long recognized the capacity for interpretive expansion in Irish abortion law,⁴⁰ including with respect to the new legislation and the capacity to read the protection of a woman’s life to include her life interests in mental and bodily integrity, and the personal choices which give life meaning.³¹ Working the gaps and ambiguities in abortion laws mark the history of informal decriminalization, that is, of regulatory schemes toppling into ever more liberal variants.³⁴ Where doctors are legally secure in their actions, without fear of prosecution or discipline, the law’s interpreters become the lawmakers.

One of the procedural mechanisms of this informal liberal drift in the Act is the entitlement of a woman to be heard in person in the review process. This entitlement stands in contrast to the rest of the legislation where women are to be examined, the objects of certification and review. The Professional Guidance, for example, speaks at length about the “vital knowledge” that medical practitioners have regarding pregnant women, and that this expertise is acknowledged in the Act, which seeks to involve them throughout the process. No such similar statement is made of the expertise of women. On the contrary, the additional certification requirements in cases of suicide risk, evidence a distrust of women in speaking to their own subjectivity.

The right to be heard, however, is one of the only procedural requirements the European Court expressly named in its judgments. In naming the right to be heard, the Court challenged this basic premise of restrictive abortion laws: that women are things to be acted on, rather than respected as persons who act. The right to be heard is a procedural right, but one tied to norms of respect, worth, and dignity. To involve a woman in this process is to signal that her view on the subject matters. A woman’s fear of blindness, or her risk of unemployment while raising three children alone, is relevant to the determination of her legal right. A woman’s fear of caring daily for a severely ill child and of the toll it will take on her family are relevant to any decision taken. The requirement that a woman be heard before she may be denied abortion services is the minimum required of the state to respect her worth as a person. To the extent that legal grounds are concealed judgments of moral worth, women speaking for and on their own behalf cuts against the objective, even clinical pretense of criminal abortion laws.

Yet access premised on voice raises concerns from the perspective of social inequality. Women with means will exit rather than fight the system, accessing abortion clandestinely or abroad. The most vulnerable and disadvantaged will be resigned to the system, but they are also the most burdened by it. For a woman who does not know the words to say, the claims to convince, the right to be heard may seem a cruel gesture. Like Miss Y, a woman is enlisted–made a part–of the very process of her denial, an author of her own misfortune. Procedural rights again threaten to legitimate what is ultimately an unjust law.

Conclusion

The Irish case study suggests that the procedural turn at the European Court is politically indeterminate. It can serve conservative and progressive ends. It carries the capacity to both limit and expand women’s access to services. In some cases, strict standards and formalized procedures administratively burden women, frustrate access and ultimately legitimate unjust laws. Procedural rights, however, also demand that women be treated with respect, worth, and dignity, and may thus advance human rights values distinct from, even at odds with, those that underlie the laws they implement. Procedural rights introduce into democratic debate concern for how women are treated under the law. It is no accident that the European Court also found violations of women’s right to be free from inhuman or degrading treatment in its procedural cases.

In the end, however, the Irish case may show that the true value of procedural rights lies in their failure. By forcing the hand of the state to make its criminal abortion law work, to make it respectful of women and fair in its treatment, procedural rights show the law to be fundamentally unworkable. By revealing the inherent dysfunction of criminal abortion laws, immune to any standard or procedure, the European Convention may thus give strength to democratic forces within the state for repeal. In Ireland, public debate over the Protection of Life During Pregnancy Act has given force to the democratic campaign to repeal the 8th Amendment, and to seek a new constitutional foundation for reproductive rights in the country.⁴¹

Acknowledgements

This article builds on the book chapter: Erdman J. The procedural turn: abortion at the European Court of Human Rights. In: Abortion Law in Transnational Perspective: Cases and Controversies. Philadelphia: University of Pennsylvania Press, 2014.