The Last Holdout: Ireland, the Right to Abortion and the European Federal Human Rights System

Abstract

The article examines the recent May 2018 constitution referendum legalizing the right to abortion in Ireland, and claims that this must be explained in light of the transformative effect that supranational law – and notably the case law of the European Court of Justice and the European Court of Human Rights – had on the Irish legal system. While in comparative perspective Ireland stood at the extreme by being the European country with the toughest abortion ban, subsequent developments at the supranational level had edged the Irish abortion prohibition and exposed the inconsistency of this regime with European free movement principles and human rights norms. By empowering social actors at the domestic level that sought a repeal of the national abortion ban, international courts favored a dynamic of transformation typical of the European federal human rights system which, also due to the diminishing influence of the Catholic Church in Ireland, eventually resulted in a landslide popular vote to recognize a right to abortion. As the article maintains, otherwise, as the result of the constitutional referendum in the Republic is quickly producing spill-over effects also in Northern Ireland – the only part of the United Kingdom where abortion still remains essentially prohibited – which suggests that the process of expansion of reproductive rights in the island of Ireland remains ongoing and convergent, despite Brexit.