Grégor Puppinck, PhD

The Council of Europe is imposing abortion on Ireland, Poland

Grégor Puppinck, PhD
By Grégor Puppinck
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WARSAW, December 13, 2012, (C-FAM.org)—In Europe, Ireland is a symbol of resistance against abortion.  Nevertheless, Ireland is on the point of giving in to the concerted pressure of the Council of Europe and the pro-abortion lobbies.

The Irish people have always been firmly opposed to abortion. Since the 1980s, they have rejected the legalization of abortion three times, while affording equal constitutional protection to the life of the unborn child and that of the mother. Abortion is therefore always prohibited, except when doctors consider it necessary to save the life of the mother.

However, the Council of Europe is at the heart of a campaign aiming to impose abortion from the top onto people who refused it from the bottom three times, by referenda in 1983, 1992 and 2002.

It is to be noted that the Council of Europe was created to defend democracy and human rights. The European Court of Human Rights is part of the Council of Europe.  Its role is to ensure the observance, by member states, of human rights and fundamental freedoms enshrined in the European Convention on Human Rights.  States should abide by the judgments decided against them by the Court.  States are free to choose the most appropriate means to put right the violation found by the Court; and they are not required to adopt the various means possibly suggested by the Court in its judgments.  This execution of judgments is placed under the supervision of the Committee of Ministers, namely the ambassadors of the 47 Member States.

On December 16, 2010, in the A., B. and C. v. Ireland case, whereas there is no right to abortion under the Convention, the Court condemned Ireland, considering that its legislation on abortion is not clear, as it did not allow a pregnant woman, who wanted to have an abortion, to know whether she qualified for an abortion according to the exception (to save the life of the mother).  That woman, having previously suffered from cancer, feared that the pregnancy would adversely affect her health.  Thinking that she would not be granted the medical permission for an abortion, she travelled toEnglandwhere she underwent an abortion.

The A., B. and C. v. Ireland and the Tysiac v.Poland of March 20, 2007, (no 5410/03) cases are the landmark abortion cases against Ireland and Poland, respectively. 

In these cases, the women complained about their inability to have an abortion particularly due to the refusal of the doctors. The two cases result from the clash between two approaches on this issue:  one, the women who demand abortion as if it were an individual right and, two, the doctors and the State who submit abortion to objective criteria, especially related to the life and the health of the mother.

In these two cases, the Court tried to favor greatly the expression and the freedom of the women, without directly confronting the State’s right to submit abortion to strict conditions.  To that end, the Court stated that if the State decides to authorize abortion, even exceptionally, it should create a coherent legal framework and a procedure allowing women to establish effectively their “right” to abortion. 

Thus, abortion is not imposed directly on Ireland and Poland, but by the peripheral way of the procedural obligations which guarantee not a substantial right to abortion, but a procedural right of knowing whether one fulfills the right to access to an abortion. 

This procedural approach obliges Ireland only to “clarify” the concrete conditions of access to abortion; in actual practice, however, it goes far beyond that obligation.  This result is achieved while recognizing the absence of a right to abortion under the European Convention on Human Rights, and without its being necessary for the Court to comment on the prohibition in principle of abortion in Irish law.  In order to impose this procedural obligation, it suffices to affirm, starting from an exception from the prohibition on the ground of danger to the life of the mother, that there is a “right” to abortion and that this “right” falls within the scope of the Convention.

In order to execute the judgments as the Court recommends (a recommendation which is not compulsory), Ireland[1] and Poland will institute a decision-making mechanism to which women wishing to have an abortion will address their demands. 

Ireland will probably follow the example of Poland, which in order to carry out the Tysiac v. Poland judgment established a “committee of experts” in charge of deciding on a case by case basis whether the conditions of access to an abortion are fulfilled. This committee will necessarily interpret and change those conditions.  The composition of this committee is decisive and is debated within the Council of Europe: the pro-abortion lobbies[2] would like to reduce the number of doctors on such committees in favour of other professions and categories (lawyers, representatives of NGOs, etc). 

This request was backed by the UN Special Rapporteur for the right to health, who affirms that “a commission composed exclusively of health professionals presents a structural flaw which is detrimental to its impartiality.”[3]  This issue is important, as doctors have a scientific, objective and concrete approach to the causes justifying a possible abortion.  By contrast, lawyers and political organizations view abortion under the abstract angle of individual freedoms. 

What is at stake in the debate on the composition of those committees is the definition of the nature of abortion; on one side it is considered from a concrete and medical point of view and, on the other side, from an abstract point of view and as an individual freedom.  If abortion is a freedom, its exercise inevitably clashes with the doctors’ assessment which is perceived as an illegitimate interference.  This confrontation is stronger when the doctors invoke their freedom of conscience to refuse to carry out an abortion.

Moreover, entrusting a committee with a decision to authorize an abortion makes this decision collective, dissolving the moral and legal responsibility of the decision into the entire committee.

The decisions of this committee should be timely, reasoned and in writing, to be challenged in the court system.  Thus, the final decision to authorize abortion will belong no longer to the doctors or the ‘committee of experts’, but to the judge who will ultimately interpret the criteria for access to abortion.  At present, no procedure has been proposed to challenge in the courts a decision authorizing abortion   In practice, only a decision of refusal can go before the courts. 

Will the unborn child have a lawyer to represent and defend him/her in this committee?  There are no safeguards provided against the abusive interpretation by this committee of the legal conditions for access to abortion.  However, the pressure to allow for the legalization of abortion is very strong, especially from the European and international institutions.[4]

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Thus, the final interpretative power of the conditions for access to abortion will be transferred to the judicial power and ultimately to the European Court of Human Rights.  With such a mechanism, the European Court would soon be called on to decide on the reasons for decisions of refusal of those committees.  This would be a new opportunity to advance the right to abortion in Ireland.  Ultimately, the control of the framework of abortion is taken away from the legislator and to the doctor. Concerning the legislator, the decision in principle of whether to permit or not to permit abortion will no longer belong to the State and its citizens, because it is sufficient for the European Court to declare that there is actually a ‘right to abortion’ in Ireland, in order to impose this as a new and authentic interpretation of the Irish Constitution.  As to the doctor, his power will be transferred to the judge, guarantor of the respect for human rights.

During its December 6, 2012 meeting, the delegates to the Committee of Ministers invited Ireland to answer the issue of the “general prohibition of abortion in criminal law’, as it constitutes ‘a significant chilling factor for women and doctors because of the risk of criminal conviction and imprisonment’, inviting ‘the Irish authorities to expedite the implementation of the judgment…as soon as possible.”[5]  Further considerations on the execution of this judgment will be resumed at the latest during the next meeting of the Committee of Ministers in March 2013.

Some questions arise:  why such pressure on Ireland and Poland, when they are among the best countries in the world in respect of maternal services, far ahead of France and the United States?[6]

Why transfer to the judge the responsibility of the doctor, when assessing the medical necessity of the abortion is the scientific responsibility of the doctor?  Why is it so urgent to legalize abortion?  Why did the Committee of Ministers of the Council of Europe decide to give ‘precedence’ to these cases, when so many cases concerning torture, disappearances, and murders are treated under the ordinary procedure?  Maybe because abortion profoundly defines the culture of a country – its legalization has the value of a ritual passage into post-modernity, as it allows the domination of individual will over life, subjectivity over objectivity.

This process it is not ineluctable, it depends on the strength of the political will of the Irish and Polish governments which can recall to the Council of Europe that their respective country has never engage to legalize abortion by ratifying the European Convention on Human Rights, simply because abortion is not a human right, but a derogation to the right to life guaranteed by the European Convention on Human Rights.[7]

The European Centre for Law and Justice is an international, Non-Governmental Organization dedicated to the promotion and protection of human rights in Europe and worldwide. The ECLJ holds special Consultative Status before the United Nations/ECOSOC since 2007. The ECLJ engages legal, legislative, and cultural issues by implementing an effective strategy of advocacy, education, and litigation. The ECLJ advocates in particular the protection of religious freedoms and the dignity of the person with the European Court of Human Rights and the other mechanisms afforded by the United Nations, the Council of Europe, the European Parliament, the Organization for Security and Cooperation in Europe (OSCE), and others. The ECLJ bases its action on “the spiritual and moral values which are the common heritage of European peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy” (Preamble of the Statute of the Council of Europe).

ENDNOTES:
1. See the Report of the official group of experts instituted by the Irish Government to propose ways of executing the judgment, published in November 2012 et accessible to this address: http://www.dohc.ie/publications/pdf/Judgment_ABC.pdf?direct=1
2. See the communication of the « Centre for reproductive rights » to the Committee of Ministers of the Council of Europe and the answer of the Polish Government DH-DD(2010)610E
3. See the Report onPoland of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, M. Anand Grover, 20 May 2010, Human Rights Council, document n° A/HRC/14/20/Add.3).
4. See the Report of the Human Rights Commissioner on his visit in Ireland (26-30 November 2007), adopted on 30 April 2008 (CommDH(2008)9), the Report of the Committee for the elimination of discrimination against women (CEDAW), of the High Commissioner Office of Human Rights of July 2005 (A/60/38(SUPP), the Periodical Report of the Human Rights Committee on the observance of the UN Covenant on civil and political rights (CCPR/C/IRL/CO/3, 30 July 2008).
5. 1157DH meeting of the Ministers’ Deputies 04 December 2012, Decision concerning the execution of A., B. and C. v. Ireland judgment.
6. Trends in Maternal Mortality: 1990-2010. Estimates Developed by WHO, UNICEF, UNFPA and the World Bank, http://data.worldbank.org/indicator/SH.STA.MMRT (last visited 20th November 2012).
7. The European Centre for Law and Justice submitted a report to the Committee of Ministers on the execution of A. B. and C. v. Ireland DD(2012)917 http://www.coe.int/t/dghl/monitoring/execution/Themes/Add_info/IRL-ai_en.asp

Reprinted from C-FAM.org.


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Quebec groups launch court challenge to euthanasia bill

LifeSiteNews staff
By LifeSiteNews staff

As announced when the Quebec legislature adopted Bill 52, An Act respecting end-of-life care, the citizen movement Living with Dignity and the Physicians’ Alliance against Euthanasia, representing together over 650 physicians and 17,000 citizens, filed a lawsuit before the Superior Court of Quebec in the District of Montreal on Thursday.

The lawsuit requests that the Court declare invalid all the provisions of the Act that deal with “medical aid in dying”, a term the groups say is a euphemism for euthanasia. This Act not only allows certain patients to demand that a physician provoke their death, but also grants physicians the right to cause the death of these patients by the administration of a lethal substance.

The two organizations are challenging the constitutionality of those provisions in the Act which are aimed at decriminalizing euthanasia under the euphemism “medical aid in dying”. Euthanasia constitutes a culpable homicide under Canada’s Criminal Code, and the organizations maintain that it is at the core of the exclusive federal legislative power in relation to criminal law and Quebec therefore does not have the power to adopt these provisions.

The organizations also say the impugned provisions unjustifiably infringe the rights to life and to security of patients guaranteed by the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms. They further infringe the right to the safeguard of the dignity of the person, which is also protected by the Quebec Charter.

In view of the gravity of the situation and the urgent need to protect all vulnerable persons in Quebec, they are requesting an accelerated management of the case in order to obtain a judgment before the Act is expected to come into force on December 10, 2015.


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Colorado baker appeals gvmt ‘re-education’ order

LifeSiteNews staff
By LifeSiteNews staff

A Colorado cake artist who declined to use his creative talents to promote and endorse a same-sex ceremony appealed a May 30 order from the Colorado Civil Rights Commission to the Colorado Court of Appeals Wednesday.

The commission’s order requires cake artist Jack Phillips and his staff at Masterpiece Cakeshop to create cakes for same-sex celebrations, forces him to re-educate his staff that Colorado’s Anti-Discrimination Act means that artists must endorse all views, compels him to implement new policies to comply with the commission’s order, and requires him to file quarterly “compliance” reports for two years. The reports must include the number of patrons declined a wedding cake or any other product and state the reason for doing so to ensure he has fully eliminated his religious beliefs from his business.

“Americans should not be forced by the government – or by another citizen – to endorse or promote ideas with which they disagree,” said the cake artist’s lead counsel Nicolle Martin, an attorney allied with Alliance Defending Freedom. “This is not about the people who asked for a cake; it’s about the message the cake communicates. Just as Jack doesn’t create baked works of art for other events with which he disagrees, he doesn’t create cake art for same-sex ceremonies regardless of who walks in the door to place the order.”

“In America, we don’t force artists to create expression that is contrary to their convictions,” added Alliance Defending Freedom Senior Legal Counsel Jeremy Tedesco. “A paint artist who identifies as homosexual shouldn’t be intimidated into creating a painting that celebrates one-man, one-woman marriage. A pro-life photographer shouldn’t be forced to work a pro-abortion rally. And Christian cake artists shouldn’t be punished for declining to participate in a same-sex ceremony or promote its message.”

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In July 2012, Charlie Craig and David Mullins asked Jack Phillips, owner of Masterpiece Cakeshop, to make a wedding cake to celebrate their same-sex ceremony. In an exchange lasting about 30 seconds, Phillips politely declined, explaining that he would gladly make them any other type of baked item they wanted but that he could not make a cake promoting a same-sex ceremony because of his faith. Craig and Mullins, now represented by the American Civil Liberties Union, immediately left the shop and later filed a complaint with the Colorado Civil Rights Division. The case now goes to the Colorado Court of Appeals as Masterpiece Cakeshop v. Craig.

“Jack, and other cake artists like him – such as those seen on TV shows like ‘Ace of Cakes’ and ‘Cake Boss’ – prepare unique creations that are inherently expressive,” Tedesco explained. “Jack invests many hours in the wedding cake creative process, which includes meeting the clients, designing and sketching the cake, and then baking, sculpting, and decorating it. The ACLU calls Jack a mere ‘retail service provider,’ but, in fact, he is an artist who uses his talents and abilities to create expression that the First Amendment fully protects."

Celebrity cake artists have written publicly about their art and the significant expressive work that goes into the artistic design process for wedding cakes.


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Prisoner of conscience Mary Wagner appeals her conviction

Tony Gosgnach
By Tony Gosgnach

TORONTO -- As promised, Mary Wagner has, through her counsel Dr. Charles Lugosi, filed a formal notice of appeal on numerous points regarding her recent, almost two-year-long court case that ended on June 12.

Justice Fergus O’Donnell of the Ontario Court of Justice rejected every application made by the defence – including for access to abortion center records, public funding, standing for a constitutional challenge and for expert witnesses to be heard – before he found Wagner guilty and sentenced her to five months in jail on a charge of mischief and four months on four counts of failing to comply with probation orders.

He further levied two years of probation, with terms that she stay at least 100 metres away from any abortion site. However, because Wagner had spent a greater time in jail than the sentence, she was freed immediately. She had been arrested at the “Women’s Care Clinic” abortion site on Lawrence Avenue West in Toronto on August 15, 2012 after attempting to speak to abortion-bound women there. She then spent the duration of the trial in prison for refusing to sign bail conditions requiring her to stay away from abortion sites.

Wagner is using the matter as a test case to challenge the current definition of a human being in Canadian law – that is, that a human being is legally recognized as such only after he or she has fully emerged from the birth canal in a breathing state.

Wagner’s notice states the appeal is regarding:

  • Her conviction and sentence on a single count of mischief (interference with property),
  • Her conviction and sentence on four counts of breach of probation,
  • The order denying public funding,
  • The order denying the disclosure of third-party records,
  • The order denying the admission of evidence from experts on the applicant’s constitutional challenge concerning the constitutional validity of Section 223 of the Criminal Code,
  • The order denying the admission of evidence from experts concerning the construction of Section 37 of the Criminal Code,
  • The probation order denying Wagner her constitutional rights to freedom of speech, freedom of expression, freedom of conscience and freedom of religion on all public sidewalks and public areas within 100 metres of places where abortions are committed,
  • And each conviction and sentence and all orders and rulings made by O’Donnell.

In the notice of appeal, Lugosi cites numerous points on which O’Donnell erred:

  • He denied Wagner her constitutional right to make full answer and defence.
  • He denied Wagner her right to rely on Section 37 of the Criminal Code, which permits “everyone” to come to the third-party defence and rescue of any human being (in this case, the preborn) facing imminent assault.
  • He decided the factual basis of Wagner’s constitutional arguments was a waste of the court’s time and that no purpose would have been served by having an evidentiary hearing on her Charter application because, in the current state of Canadian law, it had no possibility of success.
  • He misapplied case law and prejudged the case, “giving rise to a reasonable apprehension of bias and impeding the legal evolution of the law to adapt to new circumstances, knowledge and changed societal values and morals.”
  • He accepted the Crown’s submission that it is beyond the jurisdiction of the courts to question the jurisdiction of Parliament legally to define “human being” in any manner Parliament sees fit.
  • He ruled Section 223 of the Criminal Code is not beyond the powers of Section 52 of the Constitution Act, 1982.
  • He ruled Section 223 of the Criminal Code does not violate the Preamble to, as well as Sections 7, 11(d), 15 and 26, of the Charter of Rights and Freedoms.
  • He denied Wagner standing to raise a constitutional challenge to the validity of Section 223 of the Criminal Code.
  • He ruled that Section 223 of the Criminal Code applied generally throughout the entire Criminal Code and used it to deny unborn human beings the benefit of equal protection as born human beings under Section 37 of the Criminal Code.
  • He denied the production and disclosure of third-party records in the possession of the “Women’s Care Clinic” abortion site, although the records were required to prove Wagner was justified in using reasonable force in the form of oral and written words to try to persuade pregnant mothers from killing their unborn children by abortion.
  • He denied Wagner the defence of Section 37 of the Criminal Code by ruling unborn children did not come within the scope of human beings eligible to be protected by a third party.
  • He ruled Wagner did not come within the scope of Section 37 because she was found to be non-violent (in that she did not use physical force).
  • He ruled the unborn children Wagner was trying to rescue were not under her protection.
  • He denied Wagner the common-law defences of necessity and the rescue of third parties in need of protection.
  • He denied Wagner public funding to make full answer and defence for a constitutional test case of great public importance and national significance.
  • He imposed an unconstitutional sentence upon Wagner by, in effect, imposing an injunction as a condition of probation, contrary to her constitutional rights of free speech, freedom of expression, freedom of conscience and freedom of religion.

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Among the orders Lugosi is seeking are:

  • That an appeal be allowed against conviction on all counts and that a verdict of acquittal be entered on all counts,
  • That Section 223 of the Criminal Code be found unconstitutional  and contrary to Section 52 of the Constitution Act, 1982, as well as the unwritten constitution of Canada,
  • That the sentence be declared unconstitutional and contrary to Section 52 of the Constitution Act, 1982, and the unwritten constitution of Canada or that a new trial be conducted, with Wagner permitted to make full answer and defence, be given standing to make a constitutional attack on Section 223 of the Criminal Code, with the admission of expert witnesses,
  • That the Women’s Care Clinic abortion site be made to produce third-party records pertaining to patients seen on August 15, 2012 (when Wagner entered the site),
  • And that there be public funding for two defence counsels at any retrial and for any appeal related to the case.

No date has yet been established for a decision on the appeal or hearings.

A defence fund for Wagner’s case is still raising money. Details on how to contribute to it can be found here.


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