Is Article 8 ECHR the ‘Feminist Article’?

Helen Fenwick is a Professor of Law at Durham Law School. This post is also published at Human Rights in Ireland.

 This post concentrates on Article 8 ECHR to argue that it can be viewed as sympathetic to feminist goals since, due to its particular ability to impose positive obligations on the state in relation to creating respect for private or family life, it can require the state to create curbs on the actions of non-state actors particularly adverse to women (eg. in relation to domestic violence: Hajduova v Slovakia) and ensure the efficacy of services that women in particular might need to access, such as to abortion (P&S v Poland). Women are, it is argued, more at risk than men from the actions of non-state actors within the private and family sphere (see intervention of Equal Rights Trust in Eremia and Others v Moldova on this point), so Article 8 has a particular pertinence for women, and unlike Article 14 (the guarantee of freedom from discrimination), which has not proved to have a strong impact as a means of advancing the interests of women due to its reliance on furthering formal equality (see eg Dembour Who Believes in Human Rights, Ch 7), Article 8 can address the substantive concerns of women, without the need for any reliance on a comparator.

Other ECHR Articles are also relevant. Article 3 would also support recognition of positive obligations, (see McGlynn, Clare (2009) ‘Rape, torture and the European convention on human rights’ ICLQ 58 (3)) including in the contexts considered below, although the harm threshold is obviously high. Article 8 currently may be the gateway to Article 14, the freedom from discrimination guarantee (bearing in mind that the UK has not ratified Protocol 12). In other words, if Article 8 is engaged but no violation is found, a violation of Article 14 might nevertheless be found of the two read together (Van Raalte v Netherlands).

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Abortion, Unease and Citizenship in Ireland

Máiréad Enright is a lecturer at Kent Law School and is completing a PhD at University College Cork which examines the legal treatment of questions in Muslim divorce practice in the UK and the United States from the perspective of a multiculturalist feminism.

A great deal has been written about the recent developments in Irish abortion law. Most readers will know the basics. The Eighth Amendment to the Irish Constitution, as interpreted in a case famously known as X, provides that a pregnancy may only legally be terminated in Ireland if: (i) there is a risk to life (as opposed to the health) of the pregnant woman; and (ii) as a matter of probability, that risk to life can only be averted by termination of the pregnancy.  In all other events, Irish women may and do avail of their constitutional right to travel, and most often seek abortions in the UK, often at significant personal cost, or use medication purchased online. (Although the purpose of the Amendment is to ‘balance’ the rights to life of the pregnant woman and the foetus, women who are carrying foetuses which are not medically viable are habitually denied abortions in Ireland, even though the state itself argued in D v. Ireland before the European Court of Human Rights that such a foetus does not necessarily enjoy Eighth Amendment rights.) In the past year, three difficulties with the constitutional regime (always a matter of unofficial knowledge) have emerged into public view.

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Irish Parliamentary Committee Hears Submissions on Abortion

Professor Fiona de Londras (Durham Law School)

This week an Irish parliamentary committee—the Joint Committee on Health and Children—is taking submissions on what shape proposed new legislation governing access to abortion in Ireland should take. These hearings, which are the first concrete step in the process of introducing such legislation, will almost certainly be contentious and fraught. Abortion is a political bomb in Ireland and has been for decades. This explains why, in spite of the fact that there is a clear right to access an abortion in Ireland, no legislation governing how this right can be exercised has been introduced since it was first clearly established in 1983. The purpose of this post is to outline how we got here, and to identify a few of the main sticking points likely to be raised at the hearings and in the course of drafting the legislation.

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Recommended Reading: Women and the Law Stories

Nikki Godden

Nikki is a doctoral student at Durham Law School, Durham University. She is co-creator and editor of Inherently Human.

Elizabeth M Schneider & Stephanie M Wildman (2011) Women and the Law Stories (Foundation Press)

Women and the Law Stories is a wonderful collection which tells the litigants’ tales that are a part of, but are typically excluded from, the legal history of landmark US cases which focus on women’s rights.  Chapters explore and evaluate feminist critiques of the relevant case, area of law and legal concepts in light of and in relation to these stories. The editors introduce the collection explaining that the telling and hearing of women’s stories (and, more generally, those of the powerless, disadvantaged or oppressed groups in society) has been a cornerstone of feminist method, practice and theory.[1] Or as put by Ann C Dailey, ‘the use of storytelling reflects a belief that personal and situated narrative is central to a proper understanding of justice’.[2] However, storytelling is not just a means to an end; it has an important normative dimension which reflects the idea that all voices, all storytellers, are equal and yet diverse and unique in many ways.[3] Embracing and following this storytelling tradition, the book reveals the ‘less well known’ personal narratives which ‘deserve wider recognition’.[4] In so doing, it challenges the dominant stories of these cases, and the ‘conventions of legal scholarship and institutional histories’.[5] To this end, the last chapter is a ‘hidden’ story, an ‘everyday’ case, which highlights ‘women’s experiences of anonymity and invisibility in the legal system’ and legal literature and mainstream scholarship.[6] While the stories are therefore valuable in themselves, the chapters also reflect on and interrogate feminist debates, approaches and concepts –  such as ‘gender stereotyping’ (Chamallas), equality  (Bartlett) equal versus special treatment (Wildman), access to healthcare and abortion (Copelon and Law) – exploring the implications for today and potential ways in which to move forwards in feminist legal theory and law reform.

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Not in the Home: Early Abortion Court Challenge Fails

Chantell Burrows (Blog Editor)

The British Pregnancy Advisory Service has failed in a bid to secure a change in the way women complete drug-induced early abortion.  Early abortion involves the taking of two pills; in many countries the second of these is taken in the home to improve comfort for women.  Despite calls from the Bpas to ensure this is also the case in England and Wales, a judge recently ruled that all pills involved in the process must be taken in a clinic, unless is stipulated otherwise by Andrew Lansley, the Health Secretary.

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