Vanderbilt Journal of Transnational Law


Anne M. Hilbert

First Page



This Note examines the balance of power between the European Community and its Member States through the window of the Irish abortion debate. The framework for that debate has been shaped largely by two judicial bodies: the Irish judiciary and the European Court of Justice (ECJ), the judicial arm of the European Community. The Irish judiciary has approached the abortion question through an analysis of the content of substantive individual rights protected by the Irish Constitution. The ECJ, on the other hand, has addressed abortion from the standpoint of the European Community's goal of uninhibited commerce between Member States. These two approaches have produced different sets of protected rights related to abortion. The need to choose one set or the other drove Ireland to referendum in 1992, and the Irish people chose the package of rights protected by the ECJ's "affecting commerce" jurisprudential model. This Note analyzes and compares the affecting commerce model and the Irish judiciary's "substantive rights" model as applied to abortion. The Author concludes that the adoption by Ireland of the abortion rights protected under the affecting commerce model, although it may end some confusion, may be indicative of a shift in the power to define the scope of important personal liberties from Member States to the central authority of the European Community. This centralization may be beyond the original contemplation of the states that joined to form the Community.