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Do Not Abort the Mission: an Analysis of the European Court of Human Rights Case of R.R

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Do Not Abort the Mission: an Analysis of the European Court of Human Rights Case of R.R NORTH CAROLINA JOURNAL OF INTERNATIONAL LAW Volume 38 Number 2 Article 7 Winter 2013 Do Not Abort the Mission: An Analysis of the European Court of Human Rights Case of R.R. v. Poland Elizabeth J. Ireland Follow this and additional works at: https://scholarship.law.unc.edu/ncilj Recommended Citation Elizabeth J. Ireland, Do Not Abort the Mission: An Analysis of the European Court of Human Rights Case of R.R. v. Poland, 38 N.C. J. INT'L L. 651 (2012). Available at: https://scholarship.law.unc.edu/ncilj/vol38/iss2/7 This Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Journal of International Law by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. Do Not Abort the Mission: An Analysis of the European Court of Human Rights Case of R.R. v. Poland Cover Page Footnote International Law; Commercial Law; Law This note is available in North Carolina Journal of International Law: https://scholarship.law.unc.edu/ncilj/vol38/iss2/ 7 Do Not Abort the Mission: An Analysis of the European Court of Human Rights Case of R.R. v. Poland BY ELIZABETH J. IRELANDt I. Introduction ......................... ....... 652 II. International Reproductive Rights............ .............. 654 A. The Debate ..................................... 654 B. Domestic Abortion Laws......... ..... ...... 655 C. Poland and Abortion Law.............. ..... 656 III. International Legal Framework ............. ..... 660 A. International Treaty Obligations ............... 660 B. European Convention on Human Rights .... ..... 662 1. Jurisdiction of the Court.......................663 2. ECtHR Procedure ................. ..... 664 VI. The European Convention on Human Rights.... ..... 667 A. Article 2 of the European Convention on Human Rights ................................. 668 B. Article 3 of European Convention on Human Rights.......... ................. ..... 668 C. Article 8 of the European Convention of Human Rights ................... .............. 671 1. Case law on Article 8 and Reproductive Freedom............ .................. 671 D. Article 13 of European Convention of Human Rights ......... ................ ..... 677 V. RR v. Poland: newest ECtHR case on reproductive rights ..................................... 678 A. Facts ............................. ..... 679 B. ECtHR Decision..........................682 1. Article 8 ...................... ....... 683 2. Article 3........................685 3. Article 13........................686 t Elizabeth J. Ireland is a 2007 graduate of Davidson College. J.D. expected May 2013, University of North Carolina School of Law; M.P.P. expected May 2013, Duke University. The author would like to thank all of her family for their support of her work on this article, particularly her husband, Jimmy Squibb. 652 N.C. J. INT'L L. & COM. REG. [Vol. XXXVIII C. Separate Opinions ................... ..... 686 D. Analysis of the Court Decision...................................687 1. Article 8: mentioning the consensus model...........688 2. Article 3: details about how Ms. R.R. suffered anguish ......................... ..... 690 E. Problems with an Article 3 strategy..... ......... 691 F. Implications for Future Cases ........... ...... 693 I. Introduction Abortion. It is a subject combining two issues that should never come up at the dinner table: sex and religion. In countries like the United States, where courts have made definitive decisions regarding women's abortion rights, the topic generates heated controversy.' Internationally, the topic draws even greater debate, as abortion policies may differ among bordering states.2 In Europe, women have started traveling from countries with strict domestic abortion laws to other countries where abortions are more widely permitted.3 Pro-choice advocates pushing for less restrictive abortion laws have thus supported the creation of a broader regional consensus on reproductive rights, a result that would provide women with more choices-and eliminate any need for extensive travel.4 This comment specifically considers the role of the European Court of Human Rights (ECtHR) in interpreting and developing international law on reproductive rights. The ECtHR's decisions have led to significant changes in the international field of abortion through international treaty obligations and domestic I See David Alton, The Paramount Human Right: The Right to Life, in FIFTY YEARS AFTER THE DECLARATION: THE UNITED NATIONS' RECORD ON HUMAN RIGHTS 11, 12-14 (Teresa Wagner & Leslie Carbone eds., 2001) (citing DAVID ALTON, LIFE AFTER DEATH (1997) (describing the divisive debate about abortion worldwide)). 2 Id. 3 See David Cole, "Going to England": Irish Abortion Law and the European Community, 17 HASTINGS INT'L & COMP. L. REV. 113, 116 (1993) (describing England's more liberal abortion laws and explaining how many people from countries with more conservative abortion laws travel outside of their states, a phenomenon termed "going to England"). 4 See Danielle Nappi, NOTE: Demokracja and Aborcja: Poland's New Democracy and the Tyranny of Women's Human Rights, 26 WOMEN'S RTs. L. REP. 53, 54 (2005) (discussing how pro-choice advocates believe restrictions on abortion discriminate against women who cannot afford to travel for an abortion). 2013] ABORTION IN EUROPE 653 law.5 This comment demonstrates that even though A., B. and C. v. Ireland' was not Europe's Roe v. Wade,' the 2011 case of R.R. v. Polana' illustrates how the ECtHR continues to expand the scope of rights available to women in asserting their reproductive freedoms.' Historically, the ECtHR has invoked Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention on Human Rights")'o primarily in the context of reproductive rights, but cases like R.R. v. Poland have also used Article 3 to grant relief to a woman's claim concerning reproductive rights." This comment argues that abortion advocates should implement an "Article 3 strategy" when pushing for greater reproductive freedoms. Such a strategy would use legal claims under Article 3 to continue to make progress in the field of international law, forcing domestic laws to change and consequently expanding women's reproductive rights internationally. Part I of this comment sets the context for the reproductive rights case of R.R. v. Poland by considering the overall abortion rights debate, domestic abortion law throughout Europe, and abortion laws in Poland, particularly. Next, Part II explains the international legal framework from which abortion advocates can use international treaty obligations and the European Convention on Human Rights to further their arguments. Articles 2, 3, 8, and 13 of the Convention are described in Part III. Then, in Part IV, this comment explores the reproductive rights case recently before the ECtHR, R.R. v. Poland. After summarizing the facts and the 5 Christina Zampas & Jaime M. Gher, Abortion as a Human Right- International and Regional Standards, 8 HuM. RTS. L. REv. 249, 261 (2008) (discussing substantive and procedural protections for abortion under the ECtHR.). 6 A., B. and C. v. Ireland, App. No. 25579/05, Eur. Ct. H.R. (Dec. 16, 2010), http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-102332. 7 410 U.S. 113 (1973). 8 R.R. v. Poland, App No. 27617/04, Eur. Ct. H.R. (May 26, 2011), http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-104911. 9 See id at 42-51 (discussing several bases for a woman's rights in relation to abortion). 10 European Convention on Human Rights, art. 8, Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter European Convention]. 11 R.R., App No. 27617/04, Eur. Ct. H.R. 25. 654 N.C. J. INT'L L. & COM. REG. [Vol, XXXVIII Court's analysis, this comment concludes that abortion advocates should employ an "Article 3 strategy" to push for changes in domestic abortion laws throughout Europe. II. International Reproductive Rights A. The Debate Across the world, people are fighting for reproductive freedom,12 as they have been for years." Both sides of the debate agree that abortion relates to "our treatment of the vulnerable and powerless."l 4 One side believes the unborn child is the class that should be protected; the other side believes the woman should be the protected class.s The strongest advocates of pro-life law and policy are the Vatican and the Roman Catholic Church. 6 The Church has taken the position that abortion is equal to murder." Such a connection "makes it difficult for the modem leaders of the Church to stray from this framework;" modem pro-choice advocates often use religious rhetoric in discussions with those who consider themselves pro-life." The abortion debate is also motivated by non-religious concerns. Some who oppose abortion focus on the problems it causes with regard to maternal health and other issues like children's safety. 9 For example, Lord David Alton, a British politician who has written extensively in opposition to abortion, 12 Like Berta E. Hernndez, I define reproductive freedom as "the individual's choice to reproduce or not to reproduce." Berta E. HemAndez, To Bear or not to Bear: Reproductive Freedom as a Human Right, 17 BROOK. J. INT'L L. 309, 309 (1991). Using this definition, the term includes the right both to have and to refrain from having an abortion. Id. 13 Alton, supra note 1, at 14. 14 Id. at 13. 15 Nappi, supra note 4, at 54. 16 Id. at 53. 17 Rishonda Fleishman, The
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