It is time for some plain speaking about human rights and abortion. The pressure is on from lobbyists who favour legalised abortion that Ireland should change its Constitution to comply with its international human rights obligations. I respectfully suggest that people of goodwill, who are understandably concerned about protecting Ireland’s international reputation, should closely scrutinise this argument.
The core value of human rights as a philosophical and ethical system is that it recognises the equal inherent worth and dignity of every human being. We have human rights not because some law in Dublin or New York conferred these rights upon us but by virtue of our humanity. If we accept that every human being has inherent and equal worth, this has radical implications for our society. Inequalities based on race, age, gender, physical or mental capacity, economic or intellectual power violate the basic requirement of human rights.
The argument that we should terminate the life of an innocent human being on the basis that he or she is less worthy than others contradicts the core ethical value of human rights. Yet this is the effect of what members of the United Nations Human Rights Committee have proposed. They make no attempt to address the humanity of the unborn child or to provide an ethical justification for violation of the principle of the equal worth of humans.
Having been a commissioner with the Irish Human Rights Commission from 2001 to 2011 and having represented the commission during sessions of the formulation of the UN Convention on the Rights of Persons with Disabilities in New York, I have some experience of how international human rights treaties emerge. It is no denigration of the process to acknowledge their deeply political dimension. That was obvious when the provision on the right to life of people with disabilities was being addressed. The international reality is that many countries permit abortion on grounds of disability in wide-ranging circumstances.
A convention that expressly protected children with disabilities from abortion would have little prospect of ratification by several economically and politically powerful countries. The disability advocates, who played an important role in the formulation of this convention, were themselves divided on the question, reflecting the divisions within and between the countries where they operate. The solution: a weak provision, permitting a range of interpretations, with the confident prospect that the body charged with monitoring the implementation of the convention would not be likely to challenge the laws of these strong countries.
The experience with the European Convention on Human Rights is equally political. If the European Court of Human Rights (ECHR) were to hold that Article 2 of the convention protects the right to life of unborn children, the result would be that the laws of very many European states would be in breach of the convention. Conversely, if it held that Article 2 does not give such protection, states with significant restrictions on abortion would be in violation of the convention. What the court has chosen to do is adopt a frankly political approach, showing signs recently that it is disposed to causing increasing difficulties for states whose laws protect the unborn child from abortion. This may be law, in the sense that it represents a system of adjudication backed by a sanction, but it is scarcely coherent jurisprudence in the deeper sense of seeking to protect the rights of every human on a true principle of equality.
There is no doubt that international human rights law has been a great force for good in the world over the past six decades. When it focuses on its core value of the inherent and equal worth of every human it has moved mountains: for example, the defeat of apartheid; the removal of barriers to equal opportunities for people with disabilities in the workplace; and the stigmatisation of capital punishment. Yet we should not close our eyes to the inevitable political dimension affecting the operation of international human rights law. That dimension is sadly prominent in its approach to abortion.
In Ireland we are in the unfortunate position that while our Constitution embraces in express terms the principle of equal rights in the context of adults and children, born and unborn, the abortion legislation of 2013 violates that principle. It is a shallow and partial defence of that legislation to say simply that this was required by the ECHR. Legislation that violates human rights can find no true justification by recourse to a system of positive law, the interpretation of which is dictated by realpolitik.
When we discuss and debate the issue it would be good if we could acknowledge the international reality of how the core value of human rights – the equal and inherent worth of every human being – has been compromised for perfectly understandable reasons of political calculation. Those who advocate the denial of protection of the right to life of unborn children have the task of confronting the challenge of how this may be reconciled with that core value of human rights. Simply pointing to what the members of the UN Human Rights Committee have said is not good enough.
William Binchy is barrister at law, and legal adviser to the Pro-Life Campaign