The modern abortion jurisprudence under Article 8 of the European Convention on Human Rights

Abstract

Article 8 of the European Convention on Human Rights provides a right to respect for private life. This article is the first to consider this full body of case law; it critically considers the current stance of the European Court of Human Rights (ECtHR) towards applicants claiming breaches of Article 8 created by states with exceptionally restrictive abortion laws. The ECtHR has so far found Poland and Ireland to be in breach of their obligation to respect the applicants’ right to respect for private life in three cases: Tysiąc. Poland, RR v. Poland and ABC v. Ireland. The breaches were found on the basis of failures of those states to ensure that where abortion was theoretically permissible, effective medical procedures were available, allowing it to occur in practice. This article will argue that the roles played by the concept of subsidiarity and the margin of appreciation doctrine were pivotal in the Court’s decisions in that the breaches were found on procedural grounds only. Furthermore, it will be contended that close analysis of the decisions reveals that they have a more profound importance and potential impact than is at first apparent.