Wednesday, August 7, 2013
In an article just posted on SSRN, "Reproductive health information and abortion services: Standards developed by the European Court of Human Rights," International Journal of Gynecology and Obstetrics 122 (2013) 173–176, Johanna Westeson provides a useful account of three recent decisions by the European Court of Human Rights. In light of the decisions, she also highlights the importance of the development of professional standards to the evolution of human rights norms.
In the first case, R.R. v. Poland, No. 27617/04, Eur. Ct. H.R.; 2011, the patient had been denied access to diagnosis of a genetic condition of her fetus until after the time at which abortion was legal in Poland. The ECHR held that this was a violation of her right to information in the context of reproductive health care. Westeson points out the importance in this decision of the existence of medical standards regarding rights of access to information about maternal and fetal health. In the second case, P & S v. Poland, App. No. 57375/08, Eur. Ct. H.R.; 2012, the patient was a 14-year-old rape victim, for whom abortion in Poland was legally permissible. However, she was subjected to a variety of forms of humiliating treatment, including release of her confidential information to the press and removal from the custody of her supportive mother . The ECHR determined that her treatment had violated the right not to suffer inhuman and degrading treatment and the right to respect for private life of both the patient and her mother. Here, Westeson emphasizes the importance placed by the ECHR on ethical standards for when and how conscientious objection by providers is permissible. Westeson also notes the ECHR's decison not to address the claim that the failure to provide emergency contraception violated the adolescent's human rights, and suggests that if Poland had had clearer ethical standards about such contraception, the ECHR might have been willing to take up the question.
The final decision discussed by Westeson is A. B. & C. v. Ireland, App. No. 25579/05, Eur. Ct. H.R.; 2010, a case involving three Irish women who received abortions in the UK. Abortion is illegal in Ireland except when the mother's life is at stake. In the case of one of the women, a patient with a form of cancer that could not be safely treated during pregnancy, the ECHR concluded that her inability to determine whether her life was at stake, and thus the legality of an abortion in her case, violated her right to private life. For the other women, not suffering from life-threatening conditions, the ECHR concluded that Ireland was justified prohibiting abortion given the deep moral views of the Irish people. Westeson is critical of the court's refusal to conclude that there is a human right to abortion, failure to recognize that travelling abroad is not an option for many women and is degrading for others, and inability to recognize that life and health may be difficult to distinguish in the abortion context. Had the WHO Safe Abortion Guidelines been available in 2010, Westeson hypothesizes, the ECHR might have had medical judgments to rely upon in reaching a conclusion that threats to the women's life and health cannot be easily distinguished.
Westeson's discussion is worth reading both as a useful summary of the cases and as suggestive of how evolving standards of medical ethics and practice can be useful to courts in dealing with complex human rights issues.