Irish Abortion Case Tests European Legal Standards
THE case of a 14-year-old Irish girl who became pregnant after she was raped is providing an emotion-charged example of how European Community law is gradually taking precedence over national law and chipping away at differences among the EC's member states.Skip to next paragraph
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The girl's attempts to seek an abortion in Britain have resulted in a head-on confrontation between Irish law - which not only bans abortion but which obligates the Irish state to protect the unborn fetus - and Community law, which guarantees its citizens free movement and equal access to services.
The girl and her family were barred by a Dublin High Court from traveling to Britain for an abortion. The Irish Supreme Court is expected to rule on their appeal. Most observers in Ireland believe the Supreme Court will bow to Community principles and overturn the lower-court injunction, thus allowing the girl to travel and the abortion to take place.
Settlement of the case would allow the Irish government to lay to rest an emotional controversy that has shaken Ireland since the High Court handed down its ruling Feb. 17. The government is particularly keen to quiet the debate because Ireland is to vote in a referendum in June to accept or reject the EC's Maastricht accords, a major revision to the Community's treaty that deepens EC political and economic integration.
Yet some Irish analysts believe the Supreme Court could confirm the lower court's ruling, holding a "strict constructionist" view of the 1983 constitutional amendment that calls on the state to protect an unborn fetus.
If that happens, the normally pro-Europe Irish public could turn against the Maastricht accords - ironically because they include a special provision guaranteeing that no aspect of the treaty revision jeopardizes Irish anti-abortion law.
Irish leaders originally sought the special language exempting Ireland's abortion ban from Community interference after anti-abortion activists promised to torpedo any accords that did not include such a guarantee. But now the secured exemption, if successfully applied against Community freedoms, threatens to prolong Ireland's abortion fray.
"If the Supreme Court finds as the High Court did, we're in for a real problem, and so is the Maastricht referendum," says Damian Hannan, a sociologist with Dublin's Economic and Social Research Institute. "A few opposition politicians are already calling for a negative vote."
The Irish public remains strongly anti-abortion, according to Professor Hannan. But the recent controversy reveals that a large majority also favors a few exceptions. "Two-thirds [of the public] do not agree with the High Court's finding," he says. "What they want in fact is for Community law to prevail," to allow victims of rape, or women whose health is endangered by pregnancy, to travel.
More than 5,000 Irish women are estimated to travel clandestinely outside Ireland each year to have an abortion.
The Irish case is also highlighting a contradiction in EC law that observers say will have to be cleared up soon.
In April of last year the EC's Court of Justice recognized abortion as a service - and thus something to which equal access would be guaranteed under the EC's single market. But at the same time, the court said the EC's freedom of circulation should not be enforced in contradiction of "public order" and "public morality areas where national jurisdiction prevail.
The EC executive commission, seeking to steer wide of such a hornet's nest, has said it is not its place to become involved in moral debates. But it also called on national and Community courts to find a "balance" where national and Community principles clash.
"This is really an Irish social problem, and not one for us to resolve," says one commission official. "Frankly the commission doesn't want to get tangled in this, and I doubt the [European Court] is relishing getting in it, either."