The laws of others: mandating "rights through travel" between discrimination, moral hazard, and irrationality.

• Author: Ergas, Yasmine
• Position: Banishing Women: The Law and Politics of Abortion Travel

1. Abortion Travel between Contestation and Elision

   In the mid-1970s, shortly after a national referendum enshrined the right to divorce within Italy's legal framework, the campaign for the liberalization of the country's prohibitive abortion and contraception regulation took off. Part of the strategy adopted by feminist groups centered on organizing abortion travel. Clinics in London--where abortion had been legalized in 1967 (subject to various conditions, including the opinion of two physicians)--proved amenable to receiving weekly plane-loads of women accompanied by one or two activists. As demand grew and London no longer sufficed, other destinations were added. Until a new law was passed in 1978, unhappily pregnant women continued to meet in a cellar of a Roman working class neighborhood that has long since ceded to gentrification.' There, they received travel instructions from a group of young feminists. Many of the activists were university students; a few--like the lead organizer, physician Simonetta Tosi--already professionals. Perhaps the women going to London were "learning feminism" at the same time as they were accessing vital services. It's possible that the travel itself promoted recruitment; (2) certainly, it was organized both as a service and as a form of mobilization.

   Abortion travel can constitute a locus of collective action as well as an individual response to restrictive laws and practices. Women cross borders to access services where they are legal, or less expensive, or come with other advantages such as increased privacy or medical guarantees. But today, "abortion travel" may also allow states to elide their obligations. Ensuring "rights through travel" can enable states to enforce regulations within their own territory that would not pass constitutional or political muster if there were not another state willing to provide the services they are themselves intent on denying. Recently, for instance, Texas argued that the existence of a clinic in New Mexico that would practice abortions meant that the restrictions it intended to place on providers within its own borders did not unduly burden women seeking to end their pregnancies. (3) The United States Supreme Court rejected Texas' arguments (inter alia, focusing on the distance women would have to travel to obtain legal abortions), but in the jurisprudence of the Council of Europe's European Court of Human Rights ("ECtHR"), allowing states to rely on the "laws of others" may constitute a new paradigm for balancing contracting states' latitude in interpreting their obligations against individuals' rights. The Court has applied this paradigm with respect to abortion, as this contribution discusses, but it has also done so in other contexts--for instance, with respect to assisted reproductive technologies. (4)

   The "rights through travel" approach risks being discriminatory. It favors those with the ability to travel over those whose circumstances restrict their access to information and mobility. And, it reinforces the stigma associated with locally prohibited activities, even as it makes those activities theoretically accessible. (5) But, it is also fraught with moral hazards and marked by irrationality. Under this approach, some state must satisfy the rights of the citizens (broadly defined) of a particular state ("State A") to a particular right--one that, for instance, entails access to a service, such as those required to ensure reproductive health. But the state that satisfies the right, i.e., that provides the relevant service, need not be State A at all. If the citizens of State A are situated within an organization (such as the European Union ("EU")) or a federal state (such as the United States) that bars member states from offering services to their own citizens while discriminating against those of another member state, then the citizens of State A will have a place to go, so long as at least one member State provides the relevant services. (6) This leaves other states free to deny such services on the basis of their own preferences. It also, however, places a potential burden on states that choose to provide these services, and may end up promoting free-ridership. Provider-states may then be tempted to close their borders--or eliminate their services--creating a downward spiral. Or, they may seek to maximize the financial and other advantages associated with being a provider-state, developing markets by charging high fees to all users, whether national or trans-border. Thus, when states are exempted from allowing their citizens to vindicate rights within their own borders, individuals become dependent on the laws of others. The legal and material ability and willingness of other states to satisfy them (including through commercial activities) become key. National obligations to satisfy human rights mutate into third-party opportunities to grow global markets.

2. Ireland: Towards A National Exemption?

   Irish women know about the consequences of a legal system that simultaneously recognizes a right to access abortion in particular circumstances and denies that the state has an obligation to satisfy it directly. (7) Several thousand travel to the U.K. and other European countries every year in order to access abortions. (8) They have done so for decades--over 161,000 traveled to the U.K. between 1980 and 2014. (9) And, despite numerous legislative changes, they have continued to do so at a rate of approximately 4,000 per year. (10) Their travel has been legitimated under--and, one might say, propelled by--A, B & Cv. Ireland, a case in which the European Court of Human Rights simultaneously sanctioned Ireland's restrictive abortion regulation and subordinated the legality of such regulation to the ability of women to travel to other countries to obtain the abortions they cannot have in loco. (11)

   A, B & C has often been commented upon; I will only recall its principal elements. (12) A, B, and C complained that Ireland's legal and regulatory framework compelled them to travel to access abortion services. A had thought her partner was infertile until she became pregnant. Unmarried, unemployed, and impoverished, A was already the mother of four children--all in foster care. Her pregnancies, including this fifth, were marked by depression. In addition, she had battled alcohol dependency. Afraid that the...