1. See eg World Health Organization Unsafe Abortion: Global and Regional Estimates of Incidence of Unsafe Abortion and Associated Mortality in 2008 (Geneva: WHO, 6th edn, 2011) p 14 et seq; available at http://apps.who.int/iris/bitstream/10665/44529/1/9789241501118_eng.pdf (accessed 20 November 2012).

2. Article 40.3.3 of the Irish Constitution provides that the lives of the mother and foetus are to be accorded equal protection. See for discussion Lawson, R ‘The Irish abortion cases: European limits to national sovereignty?’ (1994) 1 EJHL 177–180.Google ScholarPubMed

3. Protocol No 35 annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union (Consolidated versions of the Treaty on European Union and the Treaty on Function of the European Union 2010/C 83/01). Malta has similarly entered an exception: Protocol No 7 of the Treaty of Accession 2003. See further Shuibhne, N ‘ Margins of appreciation: national values, fundamental rights and Ec free movement law’ (2009) 34(2) EL Rev 230 at 249.Google Scholar

4. Vo v France (2005) 40 EHRR 12, especially para 82.

5. See eg Czerwinski, A ‘Sex, politics, and religion: the clash between Poland and the European Union over abortion’ 32 Denver J Int'l Law & Pol'y 653;Google ScholarPubMed Smythe, L Abortion and Nation: The Politics of Reproduction in Contemporary Ireland (Ashgate: Aldershot, 2005) p 30 et seq.Google Scholar

6. For example, see the applicants' complaints concerning the response of the Polish courts in Tysiąc v Poland (2007) 45 EHRR 42 para 125; RR v Poland (2011) 53 EHRR 31 para 209.

7. There are an estimated 50,000 illegal abortions in Poland a year: UN Population Division Department of Social and Economic Affairs Abortion Policies: A Global Review (New York: United Nations, 2005) p 39; see http://www.un.org/esa/population/publications/abortion/ (accessed 20 November 2012). Figures for Irish addresses given in UK abortion clinics showed that around 4149 women travelled for abortion in 2011: UK Department of Health ‘Abortion statistics: England and Wales’ (London: Department of Health, 2011) at 36; see also https://www.wp.dh.gov.uk/transparency/files/2012/05/Commentary1.pdf (accessed 20 November 2012).

8. See eg Nowicka, W Reproductive Rights in Poland – The Effects of the Anti-Abortion Law (Warsaw: FEDERA, 2008) p 23 et seq;Google Scholar Human Rights Watch ‘A state of isolation: the state of abortion for women in Ireland’ (New York: HRW, 2010), available at http://www.hrw.org/en/reports/2010/01/28/state-isolation (accessed 20 November 2012); Fatindes, A, Rao, K and Briozzo, L ‘Right to protection from unsafe abortion and post-abortion care’ (2009) 106 Int J Gynecology & Obstetrics 164.CrossRefGoogle Scholar

9. Paton v UK (1981) 3 EHRR 408; H v Norway 73 dr 155 (1992); Boso v Italy (App no 50490/99), Reports of Judgments and Decisions 2002-VII.

10. (2004) 40 EHRR 12.

11. Ibid, para 77. See for discussion: A Plomer‘A foetal right to life? the case of Vo v France’ (2005) Hrl Rev 311 at 319; Hewson, B‘Dancing on the head of a pin? Foetal life and the European Convention’ (2005) 13(3) Fem LS 363;Google Scholar Wicks, E ‘The meaning of “life”: dignity and the right to life in international human rights treaties’ (2012) 12(2) HRLR 199.Google Scholar

12. Brüggemann and Scheuten v Federal Republic of Germany (1977) 5 DR 103 at 107. Abortion was sought on ‘social’ grounds within a regime that at the time in question was not especially restrictive, in comparative terms.

13. One significant exception was Portugal, but its restrictive abortion regulation was abandoned in 2007: see Singh, S etal ‘Abortion worldwide: a decade of uneven progress’ (Washington, DC: Guttmacher Institute, 2010) table 2.1; see http://www.guttmacher.org/pubs/Abortion-Worldwide.pdf (accessed 20 November 2012).Google Scholar

14. Kligman, G and Gal, S ‘Gendering postsocialism: reproduction as politics in East Central Europe’ in Antohi, S and Tismaneanu, V (eds) Between Past and Future: The Revolutions of 1989 and their Aftermath (Central European University Press, Budapest, 2000) pp 198–215;Google Scholar Kulczycki, A ‘Abortion policy in postcommunist Europe: the conflict in Poland’ (1995) 21(3) Popul Dev Rev 471.CrossRefGoogle Scholar

15. Kligman and Gal, above n 14.

16. In particular, Poland, Hungary, Albania and Russia; see eg The Center of Reproductive Rights ‘Women of the world: laws and policies affecting their reproductive lives: East and Central Europe’ (New York: CRR, 2000) at 151 et seq; see http://reproductiverights.org/en/document/women-of-the-world-laws-and-policies-affecting-their-reproductive-lives-east-and-southeast- (accessed 20 November 2012).

17. In Malta, San Marino and Andorra, it appears that abortion is not available even to save the life of the mother, since no express exceptions to the prohibitions on abortion are made: see Singh etal, above n 13, app. 1.

18. Law on Family Planning (protection of the human foetus and conditions permitting pregnancy termination) 1993 (Poland) Statute Book 93.17.78 (1993 Act): abortion is permitted before 12 weeks where conception was a result of rape, the foetus is severely disabled or where continuing the pregnancy would pose a serious threat to the health of the woman. In the latter case, this must be attested to by two medical specialists: s 4(a) of the 1993 Act, and s 2 Ordinance issued by the Minister of Health on 22 January 1997 (Poland). With regard to the right to conscientiously object, see s 39 of the Medical Profession Act of 1996 (Poland).

19. Procuring a miscarriage is a criminal offence in Ireland by the Offences against the Person Act 1861 (OAPA), ss 58 and 59; the law is interpreted in accordance with Art 40.3.3 of the Irish Constitution addressing the ‘equal’ right to life of the mother and foetus, which in Attorney General v X [1992] 1 IR 1 was found to require that a ‘real and substantial risk’ to the life of the pregnant woman be adduced in order for a termination to be lawful.

20. Ireland has little or no data on the incidence of domestic abortion permissible under its national law: see ABC v Ireland (2011) 53 EHRR 13 para 189.

21. Nowicka, above n 8, pp 28–31.

22. At the 1994 International Conference on Population and Development in Cairo, the representatives agreed that women needed to be empowered to take charge of their reproductive lives, and that unsafe abortion is a public health concern (5–13 September 1994 A/Conf 171/13 Rev 1 ch VII 7.12). At the 1995 World Conference on Women, Beijing, governments pledged to guarantee reproductive rights for all women (4–15 September 1995 A/Conf 117/20 Rev 1 ch I para 92).

23. Open Door Counselling and Dublin Well Woman v Ireland (1992) 15 EHRR 44; Women on the Waves and Others v Portugal (App no 31276/05), judgment of 3 February 2009.

24. (Admissibility) (2006) 43 EHRR SE 16.

25. (2007) 45 EHRR 42.

26. (2011) 53 EHRR 13.

27. (2011) 53 EHRR 31.

28. (App no 46132/08), judgment of 13 November 2012.

29. (App no 57375/08), judgment of 31 October 2012.

30. Para 132 et seq. For a detailed discussion of the facts and findings in ABC, see the following case-notes: Daly, B ‘“Braxton Hicks” or the birth of a new era?’ (2011) 18 EJHL 375;Google ScholarPubMed Krishnan, S ‘What's the consensus: the Grand Chamber decision on abortion in A, B and C v Ireland ’ (2011) 2 EHRLR 200;Google Scholar Ronchi, P ‘ A, B and C v Ireland: Europe's Roe v Wade still has to wait’ (2011) 127 LQR 365.Google Scholar

31. Para 64 et seq.

32. Ibid, paras 51–61.

33. Para 90.

34. Para 166. As the facts of the cases discussed below indicate, the only applicant who had any realistic chance of obtaining a domestic remedy was C, as the Grand Chamber pointed out: paras 144–145. An analogy could be found with the case of Earl Spencer v UK (1998) 25 EHRR CD 105; it was dismissed for lack of exhaustion of domestic remedies on the basis that the UK should be given a chance to develop such remedies. Since the UK failed to do so, the next case found that such a complaint would be declared admissible (Barclay v UK (App no 35712/97) decision of 18 May 1999).

35. ABC v Ireland (2011) 53 EHRR 13 paras 154, 267.

36. Ibid, para 147.

37. Tysiąc v Poland (2007) 45 EHRR 42 paras 117–118.

38. ABC v Ireland (2011) 53 EHRR 13 para 147.

39. A was a recovering alcoholic whose other four children were in care; she sought to terminate her pregnancy since she considered that a further child at that point would prevent the reunification of her existing family and delay her recovery. Due to her circumstances, she had to return immediately after the abortion (para 14), and due to her poverty she had particular difficulty in raising the needed funds (para 128). B, a teenager, sought to terminate the pregnancy since she considered that as a single parent she could not support the child (paras 19–21). C was possibly within the exception: as a cancer patient in remission, she sought an abortion since it appeared that she would not receive chemotherapy in Ireland while pregnant due to the risk to the foetus (para 22), which might have placed her life at risk.

40. Para 128. It was accepted that the Irish prohibition had led to a later abortion for applicant C: para 129.

41. Paras 116–168, 127, 130.

42. Para 213.

43. Para 214.

44. Para 228.

45. (1993) 15 EHRR 244.

46. Para 61. This stance was criticised by the minority judges: see the Partially Dissenting Opinion of Judge Matscher, and the Dissenting Opinion of Judges Pettiti etal, at 35–37.

47. Para 63. The term ‘rights of others’ is in any event imprecise and need not denote a Convention right: see eg the uncertain meaning attributed to ‘others’ and ‘rights’ under Art 10(2) in Steel & Morris v UK (2005) 41 EHRR 22.

48. Paras 222–228.

49. See eg the use of consensus under Art 8 in cases dealing with legal accommodation of transsexuals: B v France (1993) 16 EHRR 1; Sheffield and Horsham v UK (1999) 27 EHRR 163 para 60; Goodwin v UK (2002) 35 EHRR 18 para 85. See further DzehtsiarouK ‘Does consensus matter? Legitimacy of European consensus in the case law of the European Court of Human Rights’ [2011] Pl 534, 547; LetsasG A Theory of Interpretation of the European Convention on Human Rights (Oxford: Oxford University Press, 2007) pp 120–131. The term ‘consensus’ is not used in the technical sense of an absolute conformity; rather, the term connotes an identifiable trend within European countries: see Dzehtsiarou, idem, at 541–548.

50. See eg Sweeney, J ‘Margins of appreciation: cultural relativity and the European Court of Human Rights in the post Cold-War era’ (2005) 52(2) ICLQ 459 at 461.CrossRefGoogle Scholar

51. Para 175.

52. Para 237.

53. Partial Dissent of Judges Rozakis Tulkens, Fura, Hirvelä, Malinverni and Poalelungi, para 9.

54. Para 240.

55. Para 241.

56. Para 239.

57. Para 238. The inference is that where abortion is sought for reasons of ‘wellbeing’, despite falling under Art 8(1) as described above, the state will be justified in restricting abortion to protect the foetus.

58. See Letsas, above n 49, pp 97–98. See also generally MacdonaldR St J ‘The margin of appreciation’ in Macdonald R St J, Matscher F and Petzold H (eds) The European System for the Protection of Human Rights (Dordrecht: Martinus Nijhoff, 1993) p 85; Odievre v France (2004) 38 EHRR 43, Concurring Opinion of Judge Rozakis, cited by Letsas.

59. In particular, Handyside v UK (A/24) (1976) 1 EHRR 737.

60. See Dzehtsiarou, above n 49, at 541.

61. Constitutional Review Group Report ‘The right to life (unborn and mother)’ (1996) Arts 40–44 at 252, cited in DonnellyS ‘A, B and C v Ireland: will the European Court of Human Rights address Ireland's restrictive abortion law?’ (2010) 1 Med-L J Ireland 16 at 20. See also The All Party Oireachtas Committee on the Constitution (Government of Ireland, 2000), available at http://www.constitution.ie/reports (accessed 20 November 2012); Vo v France Separate Opinion of Judges Rozakis, Caflisch, Fischbach, Lorenzen and Thomassen, para 2.

62. Paras 115, 180, 185.

63. The concept of subsidiarity may mean that greater deference is paid to domestic Constitutional Courts since they have a special role in identifying the rights to be protected: see eg Von Hannover v Germany No 2 (App no 59320/08) 7 February 2012 with regard to the wide margin of appreciation granted in relation to the national balancing of Arts 8 and 10. See further HewsonB ‘No Roe v Wade’ (2011) 161 NLJ 119 at 120.

64. Para 231.

65. The 1993 Act; see n 18.

66. (App no 57375/08), judgment of 31 October 2012.

67. Para 97.

68. (1993) 15 EHRR 244 para 68.

69. See criticisms and reform proposals: the Interlaken Declaration (19 February 2010), available at https://wcd.coe.int/ViewDoc.jsp?id=1591969&Site=COE (accessed 20 November 2012); the Izmir Declaration (27 April 2011), available at https://wcd.coe.int/ViewDoc.jsp?id=1781937&Site=COE (accessed 20 November 2012); and the Brighton Declaration (19–20 April 2012), available at https://wcd.coe.int/ViewDoc.jsp?id=1934031&Site=COE (accessed 20 November 2012) – all extensively trialled before being finalised. See also O'Boyle, M ‘The future of the European Court of Human Rights’ (2011) 12 German L J 1862;Google Scholar H Fenwick ‘An appeasement approach in the EctHr’ UK Constitutional Law Blog (5 April 2012), available at http://ukconstitutionallaw.org/2012/04/05/helen-fenwick-an-appeasement-approach-in-the-european-court-of-human-rights/ (accessed 20 November 2012).

70. (2007) 45 EHRR 42.

71. (2011) 53 EHRR 13 para 130.

72. (2011) 53 EHRR 31.

73. Para 10; there was also a risk of rupturing the uterus (due to previous Caesareans).

74. Para 16.

75. Para 124. See further Priaulx, N, who finds that Tysiąc did not bring about a radical change in the Court's previous policy of avoiding a stance on abortion: ‘Testing the margin of appreciation: therapeutic abortion, reproductive “rights” and the intriguing case of Tysiąc v Poland ’ (2008) (15) EJHL 361, 375–376.Google Scholar

76. ABC v Ireland (2011) 53 EHRR 13.

77. C had been having chemotherapy treatment for cancer for 3 years, but it became apparent that if the cancer returned, she was unlikely to be able to receive diagnostic tests and treatment for it within Irish law, while pregnant, due to the risk to the foetus: ibid, para 22 et seq. It was also possible that pregnancy might have exacerbated her cancer, if it re-emerged (para 14).

78. Para 130.

79. Paras 244–246.

80. (2011) 53 EHRR 31. It may be noted that her actions against medical personnel in Poland were partially successful, but the ECtHR found the claim admissible since the compensation awarded was insufficient (paras 91–110). For further detail as to the facts, see BodnarA ‘Poland: Strasbourg Court holds state liable for failure to provide adequate abortion services’ [2011] PL 157.

81. Paras 200, 203.

82. Paras 12, 16.

83. Paras 20, 22.

84. Para 202.

85. Para 213.

86. (App no 46132/08), judgment of 13 November 2012.

87. Para 109.

88. Paras 126–127.

89. (App no 57375/08), judgment of 30 October 2012.

90. Paras 17, 26, 28, 29 et seq.

91. Para 21.

92. Para 41.

93. The mother's claim was found to fall within the scope of Art 8(1) on the basis of her close concern and involvement in the welfare of her daughter, a minor (para 109).

94. (2011) 53 EHRR 13 paras 214, 245.

95. Para 96.

96. Para 100.

97. Para 108.

98. (2011) 53 EHRR 13 para 206.

99. Para 106.

100. Para 109.

101. Para 108.

102. Para 111.

103. Tysiąc v Poland (2007) 45 EHRR 42 paras 71–73; RR v Poland (2011) 53 EHRR 13 paras 166–169; P&S v Poland (App no 57375/08), judgment of 30 October 2012, para 92.

104. ABC v Ireland (2011) 53 EHRR 13 para 237; RR v Poland (2011) 53 EHRR 31 para 189.

105. Para 99.

106. Cf the finding in D v Ireland that she could have gone before the Constitutional Court to argue her case for an abortion: (2006) 43 EHRR SE 16 paras 85, 90–91. The finding as regards C went further than finding that the Constitutional Court procedure should have been more effective (see below, n 115).

107. ABC v Ireland para 168 et seq; D v Ireland para 59.

108. (2007) 45 EHRR 42 para 80.

109. (2011) 53 EHRR 31 para 199.

110. The Irish Government submitted an action plan to the Committee of Ministers of the Council of Europe on 16 June 2011 and announced the appointment of an expert group to advise on the implementation of ABC: Deputy James Reilly (Ministry for Health), Dáil Éireann Debate Vol 761, No 3, 18 April 2012 (Departmental Reports, Written Answers). It reported on 14 November 2012. Far-reaching changes to existing practices are not expected, since provision would apply only to the few instances of serious threat to the life of the woman: see Daly, above n 30, at 391–392. Private Member's Bills have sought to go beyond ABC. In February 2012, a Bill entitled ‘Medical Treatment (Termination of Pregnancy in Case of Risk to Life of Pregnant Woman)’ was introduced into the Irish Parliament by Socialist Party TD Clare Daly, but was defeated.

111. It is estimated that 150,000 Irish women have travelled to the UK to obtain an abortion since it was legalised there in 1967: Crisis Pregnancy Agency ‘Crisis Pregnancy Agency statistical report 2005: fertility and crisis pregnancy indices’ (Dublin: CPA, 2010) at 23, available at http://www.crisispregnancy.ie/publications/crisis-pregnancy-agency-statistical-report-2005-fertility-and-crisis-pregnancy-indices/ (accessed 20 November 2012).

112. See below, n 129, regarding the death of Savita Halappanavar in Ireland.

113. Poland responded to Tysiąc by setting up a medical Ombudsman to give permission for abortions. That response largely failed to address the central complaint that doctors were refusing to make diagnoses that might lead a woman to seek an abortion, on admitted or unadmitted grounds of conscience. If the Ombudsman was to uphold a complaint in the circumstances applicable in Tysiąc, but a new diagnosis agreed with the first one, a woman in Tysiąc's position would not be able to gain access to an abortion. See Center for Reproductive Rights Tysiąc v Poland: Fact Sheet (January 2010); Amnesty ‘Poland: briefing to the Committee on Economic, Social and Cultural Rights’, EUR 37/002/2009, at 11–12, available at http://www2.ohchr.org/english/bodies/cescr/docs/ngos/AI_Poland43.pdf (accessed 20 November 2012).

114. ABC v Ireland (2011) 53 EHRR 13 para 213.

115. ‘… this margin of appreciation is not unlimited … nor is the regulation of abortion solely a matter for the member state’: the Court went on to indicate that the lack of undisputed medical health risks was central to this finding: at para 238 et seq.

116. Bonnello, Separate Opinion, paras 1–3; Borrego, Dissenting Opinion.

117. Partial Dissent, paras 1–5.

118. (App no 57375/08), judgment of 30 October 2012, Partial Dissent, para 1.

119. Para 97.

120. Their number may increase: with regard to general trends in Eastern Europe, see Kligman and Gal, above n 14. Hungary and Turkey have recently come under scrutiny due to considering greater restriction on access to abortion: Human Rights Watch ‘Turkey don't bar access to abortion’ (31 May 2012), available at http://www.hrw.org/news/2012/05/31/turkey-don-t-bar-access-abortion (accessed 20 November 2012);HRW ‘Hungary: new Constitution enshrines discrimination’ (19 April 2011), available at http://www.hrw.org/news/2011/04/19/hungary-new-constitution-enshrines-discrimination (accessed 20 November 2012).

121. An example of such a situation is provided, as indicated above, by the applicant's claim in Z v Poland (App no 46132/08), judgment of 13 November 2012.

122. RR was the subject of a public campaign, vilifying her as an abortion-seeker: (2011) 53 EHRR 31 para 43. The applicants in ABC v Ireland complained of stigma ((2011) 53 EHRR 13 para 126), as did the applicant in D v Ireland ((2006) 43 EHRR SE 16 para 74).

123. See CEDAW ‘Concluding observations of the Committee for the Elimination of Discrimination against Women: Timor-Leste’, UN Doc. 37, CEDAW/CfTLS/CO/1 (7 August 2009); Sifris R ‘Restrictive regulation of abortion and the right to health’ (2010) 18(2) Med L Rev 185 at 205–206.

124. See eg before the ICCPR Committee the case of KL v Peru (1153/2003), CCR/DC/85/D/1153/2003 (2005); 13 IHRR (2006).

125. Barber, J, Axinn, W and Thornton, A ‘Unwanted childbearing and mother–child relationships’ (1999) 40 J Health Soc Behav 231.CrossRefGoogle ScholarPubMed

126. ABC v Ireland (2011) 53 EHRR 13 para 127.

127. Para 8.

128. See Erdman, J ‘Access to information on safe abortion: a harm reduction and human rights approach’ (2011) 34 Harv J L & Gender 413 at 459–461.Google Scholar

129. See Hewson, above n 63. Note that in ABC, C claimed unsuccessfully under Art 2 that Ireland had not discharged its responsibility to protect her life (see below n 170). The widely reported death of Savita Halappanavar on 28 November 2012 – see eg ‘Unanswered questions over death of pregnant woman in Irish hospital’ The Guardian, 15 November 2012; see http://www.guardian.co.uk/world/2012/nov/14/savita-alappanavar-death-unanswered-questions (accessed 29 November 2012) – occurred after she began to miscarry, asked for an abortion and, according to news reports, was apparently refused one since a foetal heartbeat could be found; she died of septicaemia.

130. Eg in 2011 Michelle Harte, whose terminal cancer was reportedly exacerbated by pregnancy, travelled to the UK after being denied permission for a legal abortion in Ireland. Speaking to The Irish Times, she recalled being physically helped on to the plane: ‘Anyone else who was even half as sick as I am shouldn't have to uproot themselves and fly over to England. It's … not humane.’ See ‘Lawful abortion process shrouded in uncertainty’ The Irish times, 22 December 2010, available at http://www.irishtimes.com/newspaper/opinion/2010/1222/1224286072197.html (accessed 20 November 2012).

131. See ABC v Ireland (2011) 53 EHRR 13 paras 162, 244.

132. (2007) 45 EHRR 42 paras 65, 74. The withholding of medical care was recognised as potentially falling within Art 3 in Tanko v Finland (App no 23634/94), decision of 19 May 1994, and Pretty v UK [2002] 35 EHRR 1 para 53.

133. Para 164.

134. RR v Poland, paras 153–162; P&S v Poland (App no 57375/08), judgment of 30 October 2012, paras 157–169. Assessment of the minimum level of severity needed to establish a breach of Art 3 is relative: it depends on all the circumstances of the case, including the sex, age and state of health of the victim; see eg Price v UK (2002) 34 EHRR 53 para 24; Kupczak v Poland (App no 2627/09), judgment of 25 January 2011, para 58.

135. Paras 146–147.

136. Paras 153, 159.

137. Para 130.

138. Para 161.

139. East African Asians v UK (1973) 3 EHRR 76 Com Rep. See also X v Turkey (App no 24626/09), judgment of 25 October 2012, below n 155.

140. The Irish applicants claimed that the domestic restrictions on abortion and the domestic practice disproportionately burdened them as women; see D v Ireland (2006) 43 EHRR SE 16 para 60; ABC v Ireland (2011) 53 EHRR 13 paras 126, 212–215, 268, 270. Various claims were raised in the Polish cases: treatment driven by sexism – P&S v Poland (App no 57375/08), claim lodged on 18 November 2008; discrimination on grounds of pregnancy – Z v Poland (App no 46132/08), judgment of 13 November 2012, paras 129–131.

141. See eg ABC v Ireland para 270; P&S v Poland (App no 57375/08), judgment of 30th October 2012 para 171; Z v Poland para 31.

142. The claim as lodged is unavailable; the Center for Reproductive Rights summarises the original claim lodged at the Court on their website: http://reproductiverights.org/en/case/rr-v-poland-european-court-of-human-rights (accessed 20 November 2012).

143. Paras 170–171.

144. See on the work of the Abortion Support Network on raising funds for travel for abortion for women and girls: McDonaldH ‘Hundreds of Irish women forced to come to Britain for abortions’ The Guardian, 16 November 2012; available at http://www.guardian.co.uk/world/2012/nov/16/ireland-abortion-women-forced-abroad (accessed 20 November 2012).

145. However, the Court showed reluctance to accept this ground in Airey v Ireland (1988) 2 EHRR 305 paras 29–30.

146. Abdulaziz v UK (1985) ECHR 7 para 78.

147. That terminology is from the US and has not been used at Strasbourg; it is used here to indicate that a ground of discrimination falls within the ‘weighty reasons needed’ category.

148. Abdulaziz v UK, para 78.

149. Lithgow and others v UK (1986) 9 EHRR 329; Rasmussen v Denmark (1984) 7 EHRR 371.

150. As the case-law requires: Zarb Adami v Malta (2006) 44 EHRR 49 para 71. This requirement has provoked criticism of the Court's jurisprudence on gender by feminist commentators who advert to the lack of protection against gender-based discrimination in the reproductive context: see eg RadacicI ‘Gender equality jurisprudence of the European Court of Human Rights’ (2008) EJIL 19(4) 841.

151. (App no 46132/08), judgment of 13 November 2012.

152. Para 128.

153. Para 134.

154. Z v Moldova (the Center for Reproductive Rights reports that it filed the claim with the ECtHR on 21 February 2009 with the Moldovan Institute for Human Rights; see http://reproductiverights.org/en/case/z-v-moldova (accessed 20 November 2012)) will directly raise the question of discriminatory Art 3 treatment of an abortion-seeker. The applicant underwent an illegal, late ‘home’ abortion, probably because access to medical services was so limited in the poor rural area in which she lived. She was admitted to hospital with severe bleeding and then charged with murder due to the abortion; she was sentenced to 20 years' imprisonment, but eventually pardoned. While awaiting trial in prison and experiencing continuous bleeding, she was harassed by male prison guards and denied appropriate post-abortion care. Her claim under Art 3, either alone or with Art 14, is based on the extreme, humiliating, sexually discriminatory treatment accorded to her as an abortion-seeker, which she reportedly encountered throughout her detention, prosecution and trial. The claim alleges that Moldova violated Art 3, either alone or read with Art 14.

155. (App no 24626/09), judgment of 25 October 2012.

156. (App no 57375/08), judgment of 31 October 2012.

157. Para 129. The applicant argued unsuccessfully that the refusal of Polish doctors to perform certain procedures, allegedly since the foetus might have been harmed, had breached Art 2 (paras 106, 111). The claim under Art 2 was only found admissible under its procedural limb, regarding the question of the investigation into the death. It was found that the domestic authorities dealt with the applicant's claim arising out of her daughter's death with the level of diligence required by Art 2, so no violation was found.

158. The claim was found to be manifestly ill-founded since the applicant (the mother of the dead woman) had failed to submit precise data to substantiate it (paras 134–135).

159. DH and others v Czech Republiic (2008) 47 EHRR 3 para 189.

160. Under Art 14, both direct and indirect discrimination can be justified: see eg Zarb Adami v Malta (2006) 44 EHRR 49 para 73.

161. See Petrovic v Austria (2001) EHRR 33; see now Konstantin Markin v Russia (App no 30078/06), judgment of 22 March 2012.

162. See ABC v Ireland (2011) 53 EHRR 13 para 238 on this point.

163. (App no 30078/06), judgment of 22 March 2012.

164. In contrast to the previous finding as to lack of such a consensus in Petrovic, above n 161.

165. See eg Konstantin Markin v Russia (App no 30078/06), judgment of 22 March 2012.

166. ABC v Ireland paras 235, 237; P&S v Poland (App no 57375/08), judgment of 30 October 2012, para 97. But see DzehtsiarouK, above n 49, at 538–539, for criticism of the Court's inconsistent methods of identifying the presence of a consensus.

167. (2003) 38 EHRR 528.

168. Para 41.

169. Para 148.

170. Applicant C claimed (paras 157–159) that Ireland had directly breached her Art 2 right by the lack of an abortion entitlement where her life was threatened, but it was found that she had been able to travel lawfully for an abortion, so this argument was briefly rejected as manifestly ill-founded. In Z v Poland (App no 46132/08), judgment of 13 November 2012, a breach of Art 2 was claimed since the applicant's daughter's death was alleged to have been brought about by lack of an abortion as part of the treatment for her condition; due to lack of certainty in the medical evidence, the claim was not found to be established (paras 109–112).

171. A woman requiring an abortion as part of emergency treatment would be unlikely to be able to travel; the death of Savita Halappanavar (see above n 129) in Ireland may have been linked to the near-total ban on abortion, since she may have required such treatment due to partial miscarriage.

172. See eg Concluding Observations of the CESCR regarding Poland 6 November 2009 E/C.12/Co/5 para 28, echoing and building on the Court's stance, and the approach in KL v Peru (1153/2003), CCR/DC/85/D/1153/2003 (2005); 13 IHRR (2006). See further Gher Jm and Zampas C ‘Abortion as a human right’ (2008) HRLR 249.

173. Erdman, J ‘Access to information on safe abortion: a harm reduction and human rights approach’ (2011) 34 Harv J L & Gender 413;Google Scholar see also Sifris, R ‘Restrictive regulation of abortion and the right to health’ (2010) 18(2) Med L Rev 185.CrossRefGoogle ScholarPubMed

174. With regard to CEDAW in particular, see Cook, R and Howard, S ‘Accommodating women's differences under the Women's Anti-Discrimination Convention’ (2007) 56 Emory L J 1041 at 1044.Google Scholar

175. See n 57. Elizabeth Wicks argues that ‘the days of states being completely free to resolve the maternal–foetal conflict in any way of their choosing [may be] numbered …’ in ‘Abc v Ireland: abortion law under the Echr’ (2011) 11(3) HRL Rev 556.

176. As to such values in different Art 8 contexts, see Moreham, Na ‘The right to respect for private life in the Echr: a re-examination’ (2008) 1 EHRLR 44 at 64–65, 72–73;Google Scholar Harris, D etal Harris, O'Boyle and Warbrick: Law of the European Convention on Human Rights (Oxford: Oxford University Press, 2nd edn, 2009) pp 336–337.Google Scholar

177. See eg Hummatov v Azerbaijan (2009) 49 EHRR 36: the treatment complained of was viewed as degrading because ‘it caused considerable mental suffering diminishing his human dignity’ (para 121).

178. See eg Schuler-Zraggen v Switzerland (1993) 16 EHRR 405.

179. See Gher and Zampas, above n 175; Sifris, R ‘Restrictive regulation of abortion and the right to health’ (2010) 18(2) Med L Rev 185.CrossRefGoogle ScholarPubMed

180. Since core ECHR values of respecting dignity and autonomy are at stake: see preambles to the UDHR and the ECHR; see also Pretty v UK (2002) 35 EHRR 1, 62. As to the value of dignity underpinning international human rights law and the ECHR, see: Beyleveld, D and Brownsword, R Human Dignity in Bioethics and Biolaw (Oxford: Oxford University Press, 2001) p 12 et seq;Google Scholar Duprè, C ‘Unlocking human dignity: towards a theory for the 21st century’ (2009) EHRLR 190–206.Google Scholar

181. See eg Radacic, above n 153, at 856–857. See further Priaulx, above n 75, at 376.