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Abortion Takes Flight—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on December 30, 2011.

Abortion Takes Flight
By Linda Greenhouse ’78 MSL

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.

Indeed, the initial news reports in this country, at least in headlines, indicated that this is what had happened. The European court awarded 15,000 euros, about $20,000, to Plaintiff C, a cancer patient who feared that her life was at risk from an unintended pregnancy and who, like Plaintiffs A and B and thousands of other Irish women every year, had to leave the country to obtain an abortion.

But a closer reading of the 40,000-word decision tells a different story. The Strasbourg, France, court — which 30 years ago interpreted the Convention to protect gay rights — actually made clear that it was not recognizing a right to abortion. On behalf of Plaintiff C, who could not find an Irish doctor willing to help her even assess her risks, it was simply telling Ireland that if the country chose to offer a life-saving exception to its abortion ban, it had to give women “an accessible and effective procedure” to demonstrate that they qualified. Article 8 of the Convention, entitling individuals to “the right to respect” for their “private and family life,” required at least that. (The court noted that in the absence of such a procedure, the existing penalty of life in prison for both woman and doctor for an abortion that turned out to have been illegal imposed “a significant chilling factor” on doctor-patient consultation.)

The other two plaintiffs had not claimed to come within the life-saving exception. Their argument was that they had strong personal reasons for wanting to end their pregnancies, and that they should not have had to endure the financial and psychological burden of fleeing their own country in order to do so. (A public referendum in 1992 lifted the previous criminal prohibition on leaving Ireland to get an abortion.) These women came away from the lawsuit with nothing. Plaintiff A was single, living in poverty and suffering from clinical depression, with four children in foster care. She was trying to get her children back and was afraid that her effort would fail if the social workers knew she was pregnant. She traveled secretly to England for the abortion after borrowing nearly $1,000 at a high interest rate.

As I read the European court’s opinion, I had the eerie feeling that I was peering into an American future.

Plaintiff B became pregnant despite having taken a “morning after” pill after unprotected intercourse and was warned by two doctors that the medication put her at risk of a dangerous ectopic pregnancy (a common but incorrect belief). She borrowed a friend’s credit card and made arrangements to go to England. Although her pregnancy turned out to be normal, she felt she was not in a position to care for a child and went ahead with the 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.”

So this is the bottom line for abortion rights in Ireland — rich women and poor can sleep under the same bridge board the same plane.

Ordinarily I would not devote a column to the decision of a non-U.S. court, in the jurisprudence of which I claim no particular expertise. But as I finished reading this opinion, I had the eerie feeling that I was peering into a domestic future.

As Robert Pear of The Times noted recently, the political climate in Congress has grown much more hostile to abortion rights since the November election. Representative Joe Pitts, a Pennsylvania Republican, will be in charge of a House subcommittee with jurisdiction over many abortion-relevant subjects, including private health insurance, Medicaid, the Food and Drug Administration, and the National Institutes of Health. He is one of the leading opponents of abortion on Capitol Hill and was put forward for his new position by the National Right to Life Committee.

And as Robert Barnes of The Washington Post observed in a long article this week, states are erecting new obstacles to abortion in the expectation that the current Supreme Court is likely to uphold at least some of them. States are moving to ban abortion even before fetal viability, a direct challenge to existing Supreme Court precedent. In the name of “informed consent,” some states now require doctors to “inform” women that abortion has negative psychological effects and increases the risk of breast cancer, both of which are untrue. (Recall that Dr. C. Everett Koop, the Reagan administration’s surgeon general and a strong opponent of abortion, was given the task of with finding evidence of a psychological “post-abortion syndrome” and reported back to the White House that there was none.)

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.