The Irish do not have a legal right to an abortion except in cases to protect the life of the mother.  Given that the punishment for an abortion is life in prison for both the woman and the doctor, one can imagine that it is a challenge for a woman to find a doctor willing to declare a medical necessity.  So, as Linda Greenhouse explains in her New York Times Op-Ed, some pregnant women in Ireland take to the skies and fly across Europe to one of the many European countries with legalized abortion.  In a recent decision, the European Court of Human Rights found no right to an abortion, and more importantly, to the extent that an abortion may be a necessity, women are perfectly able to access abortions by traveling to other countries within Europe.

As Greenhouse rightly notes, this completely sidesteps the question of the burden placed on poor women when they have to travel to obtain a legal abortion.  A safe and legal abortion is not readily available to a woman who has to fly to another country.  Travel is expensive, and it requires time off from work and family that many people cannot arrange or afford.  The idea that a medical necessity may be barred in one place because it is readily available somewhere else is a frightening precedent, and one completely out of touch with the realities of life for many women who need access to open and complete communication with and services by a doctor.

Greenhouse also points out that this is a view that is not difficult to extrapolate into American law given the current tenor of the abortion debate in this country.  Despite the sometime right-wing revulsion to the inclusion of international law in American jurisprudence, it is not hard to see this case used as an implicit example of how to rapidly extend the limitations on abortion in this country.  At a time when state after state is drafting new restrictions on a woman’s right to choose, it is not much of a stretch of the imagination to see the “road trip rule” not far down the road.  It would go like this: “Because there are states in the United States who provide safe and legal access to an abortion, and because travel between states of the United States is not restricted, even if one state bans abortion, its residents still have access to an abortion simply by traveling to a state in which abortion is legal.”

Ideally, American courts would be more cognizant of the disparate effects of this type of ruling than were their Irish counterparts.  Greenhouse notes that the cultural and legal restrictions already in place in many American states make an abortion almost a non-option for many women who are not able to freely travel to get access to a doctor.  A court sanctioned “road trip rule” would almost surely lead to huge areas of the country in which abortions were criminalized.  The status of Roe is by no means stable in the current legal environment.  Let’s hope that the court will reject this trajectory, if for nothing else, then because Europe did it first.

Written by

Noah Kaplan is the Senior Executive Editor for Online Content. He is a 3L at Harvard Law School focusing on constitutional law and criminal procedure. He has interned at the Boston United States Attorney's Office and the Colorado Attorney's General's Office. Before law school, Noah taught 4th grade as a Teach for America corps member in Phoenix, Arizona.

Latest comments
  • “Travel is expensive, and it requires time off from work and family that many people cannot arrange or afford.”

    It is also a cruel burden and potentially harmful for someone who may be seriously ill – undergoing chemotherapy for example, as seen in one recent case in Ireland.

LEAVE A COMMENT