December 31, 2010

"The protection accorded under Irish law to the right to life of the unborn was based on profound moral values deeply embedded in the fabric of society in Ireland and the legal position was defined through equally intense debate."

Wrote the European Court of Human Rights in Case of A, B, and C v. Ireland, which Linda Greenhouse discusses in the NYT:
No right under the [European] Convention was violated [where the plaintiffs were able to travel to another country to obtain an abortion], 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.
Greenhouse notes that the European Court accepted a situation similar to what would come into being if the United States Supreme Court withdrew the constitutional right to abortion and the matter were left to state law. She says the case gave her "the eerie feeling that I was peering into a domestic future."
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.
The second commenter over there brings up Justice Kennedy's interest in referring to international law:
The right has roundly criticized Justice Kennedy for his interest in international law. Whaddaya bet they won't criticize him for citing the case of A, B & C v. Ireland? Watch the Court chip, chip, chip away at Roe & at Planned Parenthood v. Casey.
Well, what about the left? What about those who approve of the use of the decisions from foreign court in the analysis of American constitutional law? Whaddaya bet they won't want to have to pay any attention to "the right to life of the unborn... based on profound moral values deeply embedded in the fabric of society"?

51 comments:

David said...

If legislation can not reflect "profound moral values deeply embedded in the fabric of society," what can it reflect? And who gets to decide if a law reflects those values? In the United States, those decisions are now made by small groups of judges. That was not always the case in the past, nor will it necessarily be the case in the future.

edutcher said...

Unless someone wants to amend the Constitution, there is no right to abortion. SCOTUS delivered an opinion, which can be overturned. As is, abortion was a state issue and the province of the 9th and 10th Amendments. The Court is acting in an extra-Constitutional manner, so what else is news?

But, for the record, Kennedy (that name again!!!!) has no more right leaning on foreign law than Ginsburg. The Constitution is the penultimate law of the land and, in the case of Ireland, the First Amendment prohibitions about an establishment of religion may be valid (admittedly, no expert on the protections for religion, especially Catholicism in Eire).

Lisa said...

If men got pregnant instead of women, abortion would be available upon demand, in every pharmacy across the country for free.

dbp said...

If men got pregnant instead of women, then it would only mean that we call women men and men women. The one that gets pregnant is by definition the female.

dbp said...

If the larger, stronger and more dominant sex of Humans was the female then abortion would be almost unthinkable and certainly punishable by death.

Bob Ellison said...

Rights don't make abortions right. Judges make abortions "right".

[wv: wingstab. Hmm.]

cokaygne said...

Yes, it is true that political sides will interpret the law to suit their policy preferences.

It is troubling to a non-lawyer like myself that, ultimately, the priesthood of judges and their lawyer acolytes decide what the laws "mean" and fuck-all to the opinion of a poor heathen such as myself.

By the way, regarding Ireland and Catholicism: until recently, when cover-ups of priestly buggery finally became too much to bear, Ireland was the most catholic country in Europe, except perhaps Poland. Of course, in countries like France, Italy, Spain and Portugal >90% of the population called themselves catholics, but the common people hated the church because it was part and parcel of the fascist elites in the 1930s and 1940s. Ireland and Poland were enslaved by non-catholic foreign neighbors and the non-catholic elites they imposed. The catholic church was actually on the side of the people and priests risked death to serve the people. Just ask Irish people about the hedge schools. That, I believe, is why Ireland and Poland had none of the anti-clericalism that flourished on the left in the XX Century.

There is a lesson here for the hierarchy (judges) and the priests (lawyers) and the propagandists (journalists) of the current state church - worship of the state itself. If your service consists of blessing oppression or your exalted status gives you license to abuse the people, you run the risk of being overthrown.

One thing that would surprise Linda Greenhouse and her ilk is that while catholicism is a dim memory and sick joke for many of us, we do still retain and honor the church's teaching of profound respect for life.

rhhardin said...

Deeply embedded in the fabric the chinelle bedspread school of textual interpretation.

Blue Cheer or something would get it out.

Revenant said...

Whaddaya bet they won't criticize him for citing the case of A, B & C v. Ireland?

Why would Kennedy cite international law in support of a federalist solution when he can just cite the Constitution? Under the Constitution, regulation of abortion IS a matter that should be left entirely to the states. No citation of Irish or European law is necessary.

Hagar said...

The EU court in Brussels would very likely have found differently if the Euro was not so shaky at present and so many countries having second thoughts about the wisdom of joining in the first place.

The analagous case for the United States would be to have the U.N. decide for us what is constitutional and what is not.

Belkys said...

Karlruhe one rejected Roe vs Wade
http://en.wikipedia.org/wiki/German_Federal_Constitutional_Court_abortion_decision
BTw: the position of freedom of expression is also more restrictive than in the USA.
Germany does not have exclusionary rule
German law is in almost every case more restrictive than american law

YoungHegelian said...

Cokaygne,

"Of course, in countries like France, Italy, Spain and Portugal >90% of the population called themselves catholics, but the common people hated the church because it was part and parcel of the fascist elites in the 1930s and 1940s."

What the hell are you talking about? Do you stoke up on the substance referred to in your handle before you post?

Examples, please!

Chip Ahoy said...

Out of the blue, obiter dictum, my girlfriend at the time asked nonchalantly what my position was on abortion laws, as if it were an ordinary conversation, so I told her. Man oh Man, you talk about the merda hitting the machinula ventigena. So I got all defensive, which is to say offensive, "Why ask me when you are prepared for only one answer? Although I can see how you would imagine the entire legal world should swing around your specific health concerns, it is after all the way I met you." I figured since it was already flying we might as well have it all. We didn't last.

virgil xenophon said...

As usual, this will boil down to the standard matter of gored oxen for each side..

mesquito said...

So the Republic of Ireland may promulgate laws based on its own values? Good heavens.

Skyler said...

Hmm. Very interesting. We studied this topic in Comparative Law and I would not have predicted this ruling from what I had studied. Good for the EU, they acted in their best interest to prevent the Irish from quitting the EU.

But the fear that this is what might happen in the US is a bit paranoid. The Constitution requires full faith and credit and states cannot punish someone for conducting business in another state.

Skyler said...

Cokay shared his distorted view of history and culture, Of course, in countries like France, Italy, Spain and Portugal >90% of the population called themselves catholics, but the common people hated the church because it was part and parcel of the fascist elites in the 1930s and 1940s.

I'm pretty sure that there is a very large percent of Spain that is devout. The Spanish Civil War, for instance, exposed a nearly equal divide between the religious and the irreligious. That difference is still there, they've just decided to stop killing each other over it and live pleasantly among each other.

bagoh20 said...

" “the process of traveling abroad for an abortion was psychologically and physically arduous” for these women. "

" places of refuge for desperate women"


Well that's certainly one side's issues, but compare it to the "process" of the unmentioned party, and where is their place of refuge when even their mother's womb is purposfully turned into a death chamber?

Michael said...

Lisa: You are wrong about that. Men would have learned lo these decades not to get knocked up. Are women, "desperate" women, so fucking stupid that they can't protect themselves, that they can't remember to get their prescriptions filled, that they can't listen to their parents and teachers? Or do they get their information from "pregnant and 16." You insult women with that attitude.

traditionalguy said...

I rejoice for the lives to be lived because some judges did not become accomplices to mass murder. Of course, I can only speak for those of us who began life as a foetus inside a pregnant woman's 's womb.

SteveR said...

ohh Lisa

If "ifs and buts" were candy and nuts, it'd be Christmas everyday

Make a point

Geoff Matthews said...

Lisa,

If men got pregnant, then they wouldn't be men. They'd be women.

Pogo said...

"Human rights are not a privilege conferred by government. They are every human being's entitlement by virtue of his humanity. The right to life does not depend, and must not be declared to be contingent, on the pleasure of anyone else, not even a parent or a sovereign."
Mother Theresa
Wall Street Journal, 2/25/94

roesch-voltaire said...

Would that our moral fabric were as concerned with all the children lost in wars.

mr said...

Lisa inadvertently reminds me of a scene from the movie 'As Good as It Gets'

Receptionist: How do you write women so well?
Melvin Udall: I think of a man, and I take away reason and accountability.

Pogo said...

We now live in a nation where rights are no longer considered 'natural' but bestowed, a feudal approach that makes us all subjects, thankful to the state for any 'rights' it suffers to bestow on us.

Abortion is just the first of the death panels, laying the necessary groundwork.

PatCA said...

"places of refuge for desperate women"

Oh, please.

Even pro-abortion people admit that 90% of the 1.3 million abortions in the US are for social reasons (economics, timing, etc.) not rape, incest or health. The data from this experiment in unfettered access to abortion are nothing for another nation to emulate.

Michael said...

R-V: It is.

paul a'barge said...

That Linda Greenhouse ... man, she sure loves her some dead babies.

Quayle said...

"profound moral values deeply embedded in the fabric of society"? "

What the heck are those?

Lawrence v. Texas said there ain't no such thing.

mythusmage said...

Whether to have a child or not is the woman's decision, not anyone else. Like it or not, support it or not, it remains her decision, not yours. Be it a mistake, it is her mistake. Be it a sin, a crime, a misdeed, it is her sin, crime, or misdeed. You cannot be responsible for what she does, or deny her the right to make her own decisions.

I'd go own to contrast abortion with murder, but I haven't worked out the wording yet. All I'll say on that matter is this, how God treats a woman who has an abortion is God's business, to be enacted in God's own good time. When you can tell us just exactly how, in great detail, Man came to be, then you'll have the right to speak on God's behalf.

WV: Sutter

paul a'barge said...

@mythusmage: Like it or not, support it or not, it remains her decision, not yours.

Polly want a cracker?

Michael said...

mythusmage: "Whether to have a child or not is the woman's decision, not anyone else."

Father's, of course, are insignificant in the world of the lovely women who can't remember to take their pills or change their minds. You have to prove the existence of God before you can have rights with this line of irresponsibility.

Paul Zrimsek said...

I'd go own to contrast abortion with murder, but I haven't worked out the wording yet.

Perhaps it's because you're trying to do it backwards. You have to contrast abortion with murder before you go on to say all that other stuff.

Conservatives 4 Better Dental Hygiene said...

Of course! The reason for referring to cases decided in foreign courts is not to demonstrate well-decided precedents, but poorly decided ones! Althouse is on a roll!

Conservatives 4 Better Dental Hygiene said...

Pogo:

Get a grip.

Your New Years Resolution should be to get a handle on your morbid obsession with death, democracy and other supposed forms of tyranny.

Cheer up, Buttercup! Sunshine and fresh air might help.

The guy is like the political equivalent of a Goth bar. Is the S & M site down tonight or something?

Bender said...

you're trying to do it backwards

Kill first. Justify later. Or not. They who would be gods unto themselves need justify themselves to no one.

Cedarford said...

Edutcher - "The Constitution is the penultimate law of the land",

NO, We the People are sovereign, not a piece of paper. The Constitution is just the present operating manual the true penultimate power, We the People, have chosen to live under.

"Venerators" as St Ronnie said, of the Sacred Parchment, are little different than Islamoids who patiently explain to us that their love of each precious word of the Holy Qu'ran allows them to dispense with the burden of thinking and leave all decisions to the Holy legal-priest Mullahs who make law based on their Sacred Parchment.

Pogo said...

"...your morbid obsession with death, democracy and other supposed forms of tyranny"


Tyranny is morbid, not the vigilance thereof.

Conservatives 4 Better Dental Hygiene said...

Tyranny is a bad thing, but the Goth girl of Althousian politics sees it everywhere. Kind of like in that movie Sixth Sense.

When the little boy can't stop crying wolf, people stop believing him. But maybe that's not such a bad thing.

Go out and enjoy a New Year's celebration somewhere, Pogo. If the local goth clubs in Minneapolis are closed tonight, I can pipe in a satellite feed for you from some other, more happening locale - and you can dance and grind to sadomasochistic visions from afar til your heart's content. Just ask.

dbp said...

mythusmage said...

"Whether to have a child or not is the woman's decision, not anyone else."

And yet the father will be expected to provide child support if the woman decides to keep the child.

No woman should be forced to bear a child, sure but all women should be expected to take reasonable precautions against becoming pregnant if they don't want to bear a child. After all, that is the standard men are held to.

dbp said...

Also, not to be a drudge, but (to actually be a drudge)penultimate means the second to last. I think a couple of posters actually meant ultimate.

Pogo said...

Your concern is touching, though bizarre, given the current topic (abortion).

Bender said...

The Constitution is just the present operating manual the true penultimate power, We the People, have chosen to live under

I take it then that you agree that the ultimate Power would be the Creator who endowed each of us with certain inalienable rights, among them the rights to life, liberty, and the pursuit of happiness.

That's what the Founders who wrote and ratified the Constitution believed -- that God is the first and ultimate power -- not the government, not the courts, and sure as hell not Anthony Kennedy.

Palladian said...

"The Constitution is the penultimate law of the land"

Penultimate does not mean last or final, it means next to last.

"NO, We the People are sovereign, not a piece of paper."

The U.S. Constitution is not written on paper, but parchment, which is prepared animal hide.

jamboree said...
This comment has been removed by the author.
rdkraus said...

My favorite part:

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.


Omigod, they might have to stay overnight and think about their actions before killing off a little life in utero. Damn, that is tough.

Ireland spent 1500 years gaining freedom from various oppressors, then they promptly (well, actually they kept voting until the pols got the result they wanted) ceded soverignty to the EU. WTF?

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