THE MARGIN OF APPRECIATION IN A, B AND C V IRELAND: A DISPROPORTIONATE RESPONSE TO THE VIOLATION OF WOMEN’S REPRODUCTIVE FREEDOM

Abstract

In the case of A, B & C v Ireland the European Court of Human Rights found that there had been an interference with the applicants’ right to private life. However, “owing to the acute sensitivity of the moral and ethical issues raised by abortion” Ireland was afforded a wide margin of appreciation and was not found to have breached the Convention. This paper argues that the Court’s application of the margin of appreciation doctrine was disproportionate. Firstly, the existence of ‘consensus’ throughout Europe on permitting abortions where a woman’s health and wellbeing are at risk should have contracted the power of discretion afforded to national authorities. Secondly, the blanket deference is problematic as a matter of equality. The sensitivity of the abortion question is not a sufficient justification for judicial restraint. In light of the discriminatory nature of the policies in dispute, as well as the presence of an established principle that operates to narrow state discretion (consensus), European supervision should not have been restrained. Rather, it should have been heightened.