Abortion not considered in enlargement talks
EU applicant countries that wish to maintain anti-abortion measures in their national Constitutions or laws on becoming members of the EU, will need to negotiate special provisions to that effect in their individual Accession Treaties. Ireland did this in the 1992 Maastricht Treaty on European Union, in a special Protocol annexed to the Treaty.
The Irish Abortion Protocol arose because of concern in Ireland at the decision of the European Court of Justice in the 1991 Grogan case to the effect that abortion constitutes a medical service within the meaning of the European Treaties, and that therefore any limitation on the provision of such services by an EU Member State was a matter for EU law rather than for Irish law.
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This led to fears that EU law could be used to override Ireland's special abortion regime which gives constitutional protection to "the right to life of the unborn," because of the principle of the supremacy of EU law over - and its direct effect in - national law in matters covered by the European Treaties. Similar concerns now exist in EU applicant countries which, like Ireland, have significant Catholic populations and restriction or bans om abortion such as Poland, Slovakia, Lithuania, Hungary, Slovenia, the Czech Republic and Malta.
However the issue seems not to have been raised in the negotiations between the European Union and the applicant countries.
Jan Truszczynski, the main Polish negotiator denied that any efforts by the Polish government have been done to reach a special provision for the country during the accession talks. Nothing like that has ever been discussed, Mr Truszczynski told the EUobserver.com. In Poland a special bill on a protection of unborn life enables abortion only under extraordinary circumstances. In December 1997 the Constitutional Court confirmed the right to protect an unborn human life.
To prevent the possibility of a conflict occurring between Ireland's abortion law and the EU right of free movement of medical and other services, the Irish Government negotiated the special Abortion Protocol of the Treaty on European Union (Maastricht). This states that nothing in the EU Treaties can overrule Ireland's special abortion law. In a later Declaration, the High Contracting Parties, i.e. the Member States, said that EU law would also not affect any future amendments to the Irish constitutional position on abortion. Such an amendment is currently(2001) being considered.
Ireland's special Maastricht Treaty Abortion Protocol reads as follows:- "The high contracting parties "have agreed upon the following provisions, which shall be annexed to the Treaty on European Union and to the Treaties establishing the European Communities: "Nothing in the Treaty on European Union, or in the Treaties establishing the European Communities, or in the Treaties or Acts modifying or supplementing those Treaties, shall affect the application in Ireland of Article 40.3.3 of the Constitution of Ireland."
The Irish constitutional Article referred to (Article 40.3.3) is part of the Fundamental Rights provisions of the Irish Constitution and gives constitutional protection to "the right to life of the unborn" in the Republic of Ireland. It reads as follows: "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate that right.
