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Decision Time: The EU Referendum and the Right To Life

by Peter D. Williams

This week, Britons are going to the polls to answer whether we will be leaving or remaining in the European Union (EU). From being a subject that we seldom ever discuss or pay attention towards, it has become the central issue of national debate for months. To the extent, I rather suspect, that many are well and truly tired of it. Especially since it has become one of the most rancorous and vituperative debates in British national life since the Scottish Referendum in 2014.

We may say though, that the level of feeling about this discussion is at least somewhat proportional to its importance. Constitutionally, this Referendum is one of the gravest electoral decisions we may ever make. It behoves us, then, to consider all the most crucial facets of this debate, and so British right-to-lifers in particular ought to ask ourselves what membership in the EU means for the dignity and right to life of those human beings for whom we fight. What follows is a balanced consideration of the most relevant issues, and I hope it is useful to those considering how they will vote.

‘Subsidiarity’

It has to first be noted that on a direct and everyday level, the EU has limited effect when it comes to right-to-life issues. A governing principle of the EU, after all, is meant to be ‘Subsidiarity’ – the idea that EU competencies will be taken up only where they cannot effectively be taken up by lower (national) authorities – and the issues we usually campaign on here at Right To Life are designated as such.

Of course, that makes no ultimate sense given the fundamental importance of these topics, but since there is no European consensus on the right to life at the beginning or end of life, what laws each country takes regarding it are left to national Parliaments.  The EU has at least thus far largely respected the autonomy of each country in deciding its own laws on abortion and embryo destructive research and practice, assisted suicide and euthanasia, and population control policies. In an everyday sense, then, the EU can meaningfully be described as more or less benign.

This does not mean, however, that the EU has no relevance to these issues. There are areas in which the actions of the EU institutions – the EU Commission Parliament, and Court of Justice in particular – do have a relevant effect. I think we can identify four areas where the EU can be evaluated by right-to-lifers.

EU Parliament Resolutions

The first thing we may look at in terms of EU effects on right-to-life issues is the least practically important: EU Parliamentary Resolutions. These are not legally binding, but they show the potential direction in which EU Parliamentarians would take the EU as a whole had their institution more formal legislative power as might well happen if the EU continues into ‘ever closer union’.

In 2013, a Resolution based on the ‘Estrela Report’ was blocked by the EU Parliament. This was seen as a victory for the right-to-life movement, and the potential of the Parliament to do the right thing was certainly demonstrated.

Since then, however, the EU Parliament last year passed two resolutions that have exhorted liberalised abortion. The first, based on the ‘Tarabella Report’, asserted that “various studies show that abortion rates in countries in which abortion is legal are similar to those in countries in which it is banned, and are often even higher in the latter” (see my refutations of that bogus abortion lobby argument, here), and maintained that “women must have control over their sexual and reproductive health and rights, not least by having ready access to contraception and abortion; supports, accordingly, measures and actions to improve women’s access to sexual and reproductive health services and inform them more fully about their rights and the services available”.

The other Resolution, based on ‘Panzeri Report’, called on “the EU and its Member States to recognise the inalienable rights of women and girls to bodily integrity and autonomous decision-making as regards, inter alia, the right to access voluntary family planning and safe and legal abortion”.

If this is indicative of how the EU Parliament might act in the future, this is a cause of serious concern.

Court Rulings

On the other hand, the actions of other EU institutions have been demonstrably progressive. Take the legal case, Brüstle v. Greenpeace in 2011, decided by the EU’s highest court, the European Court of Justice (ECJ) in Luxembourg. In this, a German professor, Oliver Brüstle, invented a method for converting human embryonic stem cells into nerve cells. Since this involved the destruction of human embryos, however, Greenpeace sued that this should be unpatentable. The European Court agreed, stating that “A process which involves removal of a stem cell from a human embryo at the blastocyst [an early embryonic] stage, entailing the destruction of that embryo, cannot be patented”. This was a great victory at the time for the human dignity of unborn children, and has had legal consequences for the UK.

On the other hand, we cannot ignore the fact that EU legal judgements will be formed to a great extent by those of the European Court of Human Rights (ECHR). This Court is separate to the ECJ, having been formed by the European Convention of Human Rights, and as an organ of the Council of Europe (CoE), a wider supranational organisation than the EU. (If the UK left the EU, it would still be a member of the CoE, and subject to the ECHR, but it would not be subject to the ECJ.)

Why is this relevant? In A B and C v Ireland (2010), the ECHR in Strasbourg found that there was no human right to abortion conferred by Article 8 of the Convention (the right to private life, partly copied and pasted as Article 7 of the Charter). This was a positive judgement. It left however, the possible seeds for a future reversal of fortune. As legal scholar Peter Smith has noted:

‘A strong and oft-cited Dissenting Opinion, joined by six judges, noted… that in the apparent balancing exercise between the rights of the mother and the rights of the child (a false dichotomy and a straw man set up by the Court):

“The answer seems to be clear: there is an undeniably strong consensus among European States…to the effect that, regardless of the answer to be given to the scientific, religious or philosophical question of the beginning of life, the right to life of the mother, and, in most countries’ legislation, her well-being and health, are considered more valuable than the right to life of the foetus”.

The Dissent regarded it as a bad thing that Ireland should have the discretion to restrict access to abortion, noting with regret that it was “the first time that the Court has disregarded the existence of a European consensus on the basis of ‘profound moral views’”. There was little substance in the Court’s decision not to impose a right to abortion on Ireland, welcome although that restraint was… if we remain, there is nothing stopping a liberalising Luxembourg Court from finding differently, through an appeal to the “European consensus”.’

Funding for Abortion

Perhaps more immediately concerning than the EU Parliament or the European Court however, are the actions of the EU’s executive body – the Commission. This is a body of 28 appointed persons (representing the 28 member nations of the EU), and these become responsible for, amongst other things, proposing legislation, and managing the EU’s daily business.

To prosecute this business, member countries of the EU provide the Commission with millions of Euros in funds. From this, the Commission forms a Budget, which it spends on administrating the central institutions, and on policies ranging from agriculture to support for scientific research. One of these policies is overseas development aid, and here right-to-lifers have identified serious problems.

In 2002, the EU passed a regulation called ‘Aid for Policies and Actions on Reproductive and Sexual Health and Rights in Developing Countries’, based on a report by a Parliament member Ulla Sandbæk. This mandated funding for ”universal access to a comprehensive range of safe and reliable reproductive and sexual health care and services”, which included abortion. An increase in funding for this provision was made from 150% was contrasted to a 2.3% overall increase in the aid budget.

Since then, the EU Commission has granted money to organisations providing abortion as long as this is legal in the country in which they are operating. What this means is that European tax-payers are paying directly for abortions in developing countries, its promotion, and the ancillary services related to it. In February of this year, Commissioner Neven Mimica replied to a question raised by Members of the European Parliament (MEPs), revealing that the Commission had given €20 million to the International Planned Parenthood Federation (IPPF), the world’s biggest abortion ‘provider’, between 2005 and 2015.

The EU also uses this funding to undermine the more positive actions of other jurisdictions, such as the United States. In the Budget for 2016, the EU adopted the first ever ‘anti-Helms Amendment’. This refers to the Helms amendment, a piece of American legislation that puts a ban on any foreign aid from the Federal Government going to foreign abortions.

Acting against this, the 2016 EU Budget requires that all humanitarian entities funded by the EU provide assistance “in accordance with international humanitarian law”, without “discrimination or adverse distinction”, and (in reference to the Helms amendment) mandates that EU funds “not be subject to restrictions imposed by other partner donors”. This is ostensibly so that EU funds can go towards providing abortions as ‘care’ to victims of sexual assault in war, and has the wider effect of funding abortions for other purposes.

Bioethically Helpful Directives

Despite their bad budgetary decisions, the EU Commission has also engaged in more helpful initiatives also. As one writer has pointed out:

‘[T]he Directive on the Legal Protection of Biotechnological Inventions (1998)… acts as a disincentive for commercial research and investment into human cloning. Other directives affect medicines legislation and how clinical trials are conducted. Directives are binding on all EU member states (meaning that Brexit would unbind Britain from them). Whether one agrees or not that the EU should set such laws, these directives somewhat limit the development of concerning technologies and practices.’

If EU Directives were more consistently set and implemented in this bioethically helpful direction, it could help curtail the rogue actions of the UK in pushing the envelope in embryo-destructive research and practice.

Rejection of ‘One Of Us’

One of the most disappointing actions that the EU Commission has taken recently however, was its block of humanising changes at the European level. When the EU instituted the possibility of European Citizens’ Initiatives (ECIs) – a ‘participative democracy’ mechanism created by the Treaty of Lisbon through which a million citizens can take the initiative of introducing a legislative proposal in the European institutions – the largest proposed was the ‘One Of Us’ initiative, founded by the One Of Us campaign. This proposed a ban on EU funding for embryo-destructive research, and gained 1,721,626 signatures, almost twice the number necessary for it to be ‘successful’ (i.e. considered). Unfortunately, the EU Commission summarily vetoed it, without consideration from the EU Parliament or the Council of Ministers.

The Key Consideration: Democracy

This last fact marks, perhaps, the essential difference between the EU and the UK Parliament: the latter is formed by popular democracy, whilst the former is not. The Government of the UK is based on the majority of MPs directly elected to the House of Commons, a chamber that has the power to propose and pass laws that could shore up right-to-life protections for unborn children and people endangered by assisted suicide and euthanasia. The EU Parliament has no such powers, whereas the institution that does, the EU Commission, is unelected.

With regards to the areas of EU institutional action that undermine or benefit the right to life then, this seems important. For in considering whether we should leave or remain in the EU, the question for British right-to-lifers is fundamentally this: can UK right-to-lifers work with our allies on the continent to reform the EU, so that it becomes a consistent force for human dignity? The answer to this currently is ambiguous, because there is no democratic effort that could be realistically engaged in to properly reform the actions of the EU Commission. A pan-European initiative could help elect a better EU Parliament, and this would help stop anti-life resolutions. How though, could the EU funding for abortion be reversed? Indeed, given the failure of even a democratic initiative as strong as One Of Us, how can we ever trust that real change could be achieved even with the most overwhelming public support, if the unelected Commissioners and their civil servants oppose this?

The contrary argument to this is that the EU will only remain as it is whilst European right-to-lifers allow their Governments to leave it as it is. Only through electing Governments that will together reform the EU to make it more democratically accountable, can the EU change. This relies however, on the assumption that there is a realistic constituency and mechanism for such changes to take place. If there is, it is not immediately obvious.

Clearly, the EU brings some benefits, and some losses. Which of these outweighs the other, what potential there is for changing the situation either way, and whether indeed positive changes are possible and true hope for reforming the EU as it currently stands exists, are the key questions to which right-to-lifers have to discern answers for themselves.

It is not for me to answer these directly, at least not here. Members of Right To Life, and the wider right-to-life movement, will be divided on the EU referendum – perhaps as much as the rest of the country – and so it would be inappropriate for me to editorialise on behalf of RTL. I would hope, however, that all these elements are borne in mind by right-to-lifers when considering this important Referendum. Only time will tell what will be the full effects of our national decision, but we must all be sure to be part of it, contributing the best of our prudential judgement, whatever the outcome. If any issue deserves the wise and considered attention of those who stand for the dignity and rights of the most vulnerable, it is this one.