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I posted most of this elsewhere but just wondered if politics.ie afficiandos might be interested in what has now become the topic de jour.
The Yes side has put a lot of its credibility on the line by constantly saying that there is no legitimate abortion issue in this referendum, and they base that on say 3 points:
1) That abortion is not mentioned in the Treaty, that its not about abortion etc etc.
But clearly the EU has a great track record of mission creep when it comes to its court judgements and treaties. Also the abortion issue in general is often decided by Supreme Courts who interpret old constitutions, which typically do not mention abortion as such, in a new pro-choice light. The US Supreme Court in Roe v. Wade, for example, permitted abortion even though it is not mentioned as such in the US constitution. Obviously then the Lisbon Treaty is in effect the new constitution for the new EU and who knows how the EU courts will now interpret abortion particularly in the light of the Charter of Fundamental Rights?
2) That abortion does not fall within the competencies of the EU, that it is the responsibility of the national governments.
But it is usually admitted that the EU has already decided that in certain circumstances abortion can be classified as a commercial cross border service, in its decision in the Grogan case particularly, and as such does come under the remit of the EU.(1) Besides its clear that many of these family and social issues are now being openly discussed and decided at an EU level despite all this talk of competencies etc. For example abortion, and many other family/social issues like same sex marriages, was debated in the EU Parliament recently when they passed the Catania resolution. Some quotes from this debate, starting with Kathy Sinnott MEP:
and secondly the Maltese MEP John Attard-Montalto:"Further, as an Irish MEP and voter, it is interesting to note that this report and the amendments link the Lisbon Treaty and the Charter of Fundamental Rights with the legislation of abortion in the EU."
and finally Charles Tannock MEP:"Although the report refers to numerous issues of fundamental human rights which are laudable, it includes other issues, such as abortion, which should never have been included in this report. As the Maltese social representatives in the European Parliament are against abortion, we have had to vote against these particular parts of the report."
Also Birgitta Ohlsson, a Swedish Liberal Party MP, has launched an initiative hoping to use the new petition features of the Lisbon Treaty to overturn the prohibition on abortion in Ireland and Malta. She has attracted widespread support in the EU:"Specifically, I believe that matters concerning abortion and contraception are not matters for the European Union, but should be subject to appropriate legislation at the level of the Member States. Also, I object to the call for the Charter of Fundamental Rights to override the law of the United Kingdom, which has negotiated an exemption from its provisions."(2)
So it strains credulity to claim that the EU is stepping out of this issue and leaving it solely as a matter for national governments alone."Supporting the initiative are MEPs and community leaders from Britain, Denmark and the Netherlands, including Baroness Sarah Ludford, a Liberal Democrat MEP who sits on Euro-Parliament's committee on Civil Liberties, Justice and Home Affairs and Vice-Chairwoman of the European Parliament's Human Rights Sub-Committee. Also listed as supporting are Sophie in 't Veld, a Dutch Member of the European Parliament for the social liberal party Democrats 66, and Lone Dybkjµr, a member of the Danish Parliament for the Radikale Venstre party."(3)
3) Finally we have the Protocol that the Irish government inserted in earlier treaties and which is now carried forward into Lisbon. It reads:
Therefore Article 40.3.3 of the Irish Constitution must be taken heed of when the European Courts adjudicate on Irish abortion cases. The relevant part of Article 40.3.3 reads:"- Nothing in the Treaties or in the Treaty establishing the European Atomic Energy Community, or in the Treaties or Acts modifying or supplementing those Treaties, shall affect the application in Ireland of Article 40.3.3 of the Constitution of Ireland."
To be fair that is quite an important Protocol and doubtless does increase substantially the degree of protection for the pro-life cause in Ireland. However there is a great problem with this. Obviously that clause in the constitution has been under siege for the best part of two decades now in the Irish courts. We have had a string of X and C cases etc which have dented its seemingly cast iron protection for the unborn. Particularly the Supreme Court decided that a threat of suicide on the part of the mother should permit the unborn to be aborted. This was much to the horror of the pro-life side who feel that it could lead to widespread abortion if mothers-to-be simply claim that they feel suicidal. The pro-choice side agrees that the Supreme Court permits abortion in this scenario and wants the Oireachtas to legislate this into being. But clearly what is happening is that Irish politicians and courts are wary of allowing abortion because they are conscious of the strong pro-life lobby in Ireland. In short the current Irish prohibition on abortion rests more on the pro-life atmosphere in the country than it does on the wording of that clause in the constitution. But post Lisbon this question is now decided by the EU courts, i.e. they adjudicate what that 40.3.3. wording should mean in the context of the Charter of Fundamental Rights, and the atmosphere in Europe is heavily pro-choice. There is a giant hole here in the Yes sides argument about abortion and Lisbon. The Yes side claim that this Protocol rules out abortion but the pro-choice side is always talking about how Irish politicians should now - post the 'C' case - legislate for abortion here, hence acknowledging that abortion is not ruled out by the wording of 40.3.3, yet this wording is the only protection that is offered in the Protocol."The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right."
Its also a matter of debate as to what happens if the EU courts decide that abortion is a fundamental right. Then the Charter would be in conflict with the Protocol and the courts presumably could go either way in deciding how to balance the contradictions in the law they have before them. Incidentally when Poland negotiated an opt-out from the Charter the threat of abortion was one of the main reasons given:
An international law firm, the European Centre for Law and Justice, which has appeared many times before the European courts feels that this is an important issue, and that the Protocol would not be enough to over rule a 'fundamental right':"By virtue of the Lisbon Treaty, and upon coming into force of this Treaty, the Charter of Fundamental Rights shall be included in the primary legislation of the EU, thereby acquiring the same status as treaties...Despite all these guarantees, the UK has managed to negotiate a special protocol [opting out of the Charter], later joined by Poland. The reasons for which the two states have bound themselves by the protocol are completely different. For the UK...By contrast, Poland wanted, above all, to protect its domestic legal system against the standards of fundamental rights protection inconsistent with that system or opposite to Polish sense of morality concerning, inter alia, homosexuality, abortion, euthanasia, family law etc"(4)
Consequently it seems to this observer that these social/moral issues are very relevant to the Lisbon debate, deserve to be heard rationally and reasonably, and not disparaged constantly as non-issues by the Yes side."This [the Protocol] does seem to foreclose the possibility that the Lisbon Treaty or subsequent amendments to it could supersede Article 40.3.3. However, it does not rule out other possibilities to override the Irish Constitution that would not include Treaty law. The most likely scenario would be legislation, or even more probably, a court decision, that would declare abortion to be a fundamental human right. This is not a remote possibility; in fact, given the recent history of the European institutions, this is more probable than not to happen. Witness the fact that in May of 2008, the Parliamentary Assembly of the Council of Europe (PACE) passed a resolution calling for all 47 member states to decriminalize abortion. Additionally, only 3 of the 27 current EU Member States have laws with significant restrictions on abortion (Ireland, Poland, and Malta).
If the European Court of Justice were to decide that abortion is a “right” in interpreting the Charter of Fundamental Rights, it appears that this decision, (in the absence of an opt-out clause similar to that for Poland and the UK) would be binding on Ireland, Protocol 35 notwithstanding.
It should also be noted that following the recent decision of PACE that declared abortion to be a human right, Council of Europe Commissioner for Human Rights Thomas Hammarberg released a report on his recent visit to Ireland in which he criticized Ireland for failing to legislate for abortion and also for failing to adequately protect children under state care."(5)
Footnotes
1. The Irish Times description of the 1991 Grogan court case:
"1991: The European Court of Justice rules that while abortion is a service available under EC law, students unions in Ireland - facing an action from the Society for the Protection of the Unborn Child (SPUC) to bar them from distributing information on how and where to obtain an abortion - could be prohibited from distributing such information because they had no financial links to the UK clinics providing the service"
( ireland.com / Today / News in Focus / THE ABORTION REFERENDUM )
Senator Ivana Bacik's legal opinion given sometime ago: "In SPUC v. Grogan, European Court of Justice, October 1991, the European Court of Justice held that medical termination of pregnancy constituted a service within the meaning of the Treaty of Rome where 'performed in accordance with the law of the State in which it is carried out.' The Court in that case ruled that it had no jurisdiction since there was no commercial link between the activities of the information providers in Ireland (the students' unions against whom the case had been taken), and the providers of terminations in England (the abortion clinics). But the judgment leaves open the possibility that EC law may be invoked in future..."
( Legal Issues for Pro-Choice Opinion - Abortion in Ireland ).
2. EU Parliament debate 14 Jan 2009 Debates - Wednesday, 14 January 2009 . Incidentally this motion was based on the provisions of the Lisbon Treaty despite the fact that the Treaty has not being enacted yet, as described here:
"The Motion also erroneously builds its arguments on the supposition of the binding legality of the Charter of Fundamental Rights and on the presumptive speculation of the adoption of the Lisbon Treaty by all Member States, despite the recent referendum to the contrary in Ireland. Building soft law on the presumption that the enactment of the Lisbon Treaty is a foregone conclusion not only strains credulity but runs contrary to the principles of democracy and Member State autonomy. This same reasoning also signals the attitude of the European Parliament to the citizens of Europe that it does not, and will not respect their views as pertains to the ratification of Lisbon."
( http://www.telladf.org/UserDocs/EPmemo.pdf ).
3. Swedish MP Seeks to Force Ireland, EU to Accept Abortion as "Right" with 1,000,000 Signature Campaign .
4. CEJSH Publication information .
5. http://www.eclj.org/PDF/080609_ECLJ_...ysis_final.pdf .
Originally Posted by marmurr1916
