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Human rights - abortion.

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Luke Marsh - Human Rights Essay (Abortion) The right to abortion has been recognised in the USA since 1973, following the Supreme Court decision of Roe v Wade. The decision was seven judges to two, so was a clear majority. Despite this it is still a very controversial decision that is continually facing attack, even now on its 30th anniversary. In this case the Supreme Court held that it was unconstitutional to deprive the woman of a right to an abortion in the first trimester of pregnancy, in most instances in the second trimester and for some reasons in the third trimester. The decision in this case was based on the Constitutional right to Privacy implied by Amendment 14 of the US Constitution. The Court made it clear that their decision as to the right to privacy only extended to privacy in the sense of personal sovereignty.1 This is important because if the argument that because of privacy abortion is not the State's business, the result could have been extended, in manners that even the pro-choice lobby would not have liked. A fuller privacy would have suggested that sex in all its forms and results was private, the State then would not be able to provide protection for women from being raped or mauled in private environments. ...read more.


The foetus on the other hand may have a right to life under article 2 but only if they can be considered a person. There have been four major cases in the European Court of Human Rights. The first is the Open Door and Dublin Well Woman v Ireland in 1992, Paton v UK in 1980, Boso v Italy in 2002 and Takrczyk v Poland also in 2002. Dublin Well Woman case was mainly concerned with the right to access information on abortion in Ireland, where abortion was illegal. Therefore there is little article 2 or 8 debate in these cases. Similarly Takrczyk does not discuss article 2 or 8 in depth as it is more concerned with helping woman leave Poland to have abortions, then the right to abortions in Poland. In the more relevant cases the Court held that article 2 includes two fundamental aspects; the right to life and the prohibition of intentional killing. The court in Paton noted there was no definition of 'everyone' which is used in the right to life in article 2 but that the use of the word meant that it could only really apply post-natally, so did not include the unborn. In Boso the court was not this strict. ...read more.


The provision that is easiest to satisfy, s1(1)(a) has a time limit, which prevents its use after 24 weeks and the other provisions have requirements that are more serious and harder to meet, despite lacking time periods. As a result other implied protections of the woman over the foetus would be likely to protect these provisions as well. So the European Convention on Human Rights is unlikely to interfere or lead to a change in Abortion law in the England. Of course the application to Northern Ireland may be affected, especially if the health of a woman is superior to the right to life of a foetus in the future, in this case the right to abortions in more extended circumstances then present may need to be recognised. If the same Human Rights approach was taken in the US, there would be problems with abortion on demand for the first trimester, but the Supreme Courts ruling on second and third trimester State restrictions would be able to stand, as the English law would. 1 Dworkin, Life's Dominion (???) pg52. 2 L Tribe, Abortion and the Clash of Absolutes (Norton & Company, New York) 1992, pg13 3 L Tribe, Abortion and the Clash of Absolutes (Norton & Company, New York) 1992, pg11 ...read more.

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