Grégor Puppinck, PhD, Director of the ECLJ and responsible of the European citizens’ initiative One of Us published a 50 page study on “Abortion and the European Convention on Human Rights”, in the Irish Journal of Legal Studies (available on line here).
The purpose of this study is to present in an objective, complete and coherent manner the status of abortion under the European Convention on Human Rights. In recent years, the European Court of Human Rights has ruled on a number of cases related to abortion. These rulings provide a sufficient corpus of jurisprudence which may be analysed in a consistent manner. A number of analysts, on both sides of the abortion debate, are not satisfied with this case-law. It is often said that it is hard to find coherency in the case-law of the Court when it touches upon sensitive matters. This study aims not to discuss each ruling of the Court, but to try to find the coherency of the jurisprudence of the Court, and in doing so, to present a reasoned legal account of abortion under the Convention.
This study demonstrates and reveals the following reasoning that the Convention does not exclude prenatal life from its scope of protection and the Court has never excluded prenatal life from its field of application. The Convention does not contain, nor create a right to abortion. In most European national legislation, abortion is a derogation to the protection granted in principle to the life of the unborn. If the State allows abortion in its national legislation, it remains subject, under the Convention, to an obligation to protect and respect competing rights and interests; those rights and interests weigh on both sides of the balance in restricting the scope of the derogation as well as in supporting it. Finally, this article observes that abortion on demand is a “blind spot” in the case-law of the Court and draws the conclusion that this practice violates the Convention, because it harms interests and rights guaranteed by it without any proportionate justification. The study concludes with a call to uphold the fundamental right “not to abort”.
The debate on abortion is still very intense. The countries who have maintained restrictions on abortion have come under strong political pressure, not only internally, but also from a number of international organisations, including the Council of Europe.
In Europe, 30% of pregnancies end up in abortion.[1] After more than thirty years of legal abortion in most European countries, it should be possible to begin addressing this practice in an objective manner; looking more to the practical experience than to the ideological implications of the massive practice of abortion. As a very recent example of such objective attitude, Lord David Steel, the architect of Britain’s liberal abortion laws, has said that he “never envisaged there would be so many abortions”.[2] Stating that, “all we knew was that hospitals up and down the land had patients admitted for septic, self-induced abortions and we had up to 50 women a year dying from them”.[3] Now, he warns Ireland, whose government is executing the A. B. and C. judgment,[4] that “it would be a mistake to try and legislate for abortion in categories such as suicide or rape”.[5] It is no longer possible to talk about abortion only in terms of progress and liberation for women. For medical practitioners and lawmakers, the reality of abortion is less ideological and more complex.
The cases submitted to the Court increasingly reflect the variety and complexity of the situations related to abortion. Those cases are not limited to the abstract claim of a “right to access to abortion”, but concern various issues such as abortions for minors, eugenic abortion, consent and information of the different people concerned. For example, some women complain because they could not abort their handicapped child, while others complain for having undergone abortion without having been fully informed. A “potential father” complained unsuccessfully because his partner aborted his child while a potential grandmother successfully complained before the Court that her daughter could not obtain access to an abortion in satisfactory conditions.[6]
One of the main difficulties for the Court is to determine how to legally handle the matter of abortion: how to introduce the practice of abortion within the internal logic of the Convention and of its case-law. Indeed, when the Convention was drafted, abortion was widely criminalised, because it was considered a direct violation of the right to life of the unborn child. Only abortion induced in order to save the life of the mother was possible. The central question was, and still is, whether or not the unborn child is a “person” within the meaning of Article 2. The Court keeps this question open in order to allow the States to determine when life begins, and therefore when legal protection starts.
Those who advocate a right to abortion defend the idea that within the Convention system, “Member States are free to determine the availability and legal status of abortion”.[7] While it is true that States have the freedom not to legalise abortion, the Convention has something to say on the right to life of the unborn child and of his/her mother. At the very least, it should be widely accepted that Member States have a duty under the Convention to ban painful, late or forced abortions. Therefore, Member States are not totally free to determine the availability and legal status of abortion, but they have to take into account the different, legitimate interests and rights involved.
In cases where abortion is legal, the Court has established that its legal framework shall adequately take into account the different, legitimate interests involved. The Court has recalled several times that if and “once the State, acting within its limits of appreciation, adopts statutory regulations allowing abortion in some situations”[8], “the legal framework devised for this purpose should be shaped in a coherent manner which allows the different legitimate interests involved to be taken into account adequately and in accordance with the obligations deriving from the Convention”.[9] This wording became the principle underpinning the regulation of abortion by the Court.
Therefore, when the national legislature has decided to legalise abortion, the Court assesses its legal framework by looking at whether a fair balance is struck between the various rights and interests involved in the issue. The Court has already identified a number of those rights and interests surrounding the status of abortion, such as the interests and rights of the mother, of the unborn child, of the father, of medical staff, of society, etc. This approach of balancing rights and interests implies that those of the pregnant woman may not always prevail.
Assessing the balance of interests and the proportionality of the decisions of public authorities is the usual method of analysis of the Court. However, a major difficulty with applying this method to abortion is that it is fundamentally not possible to balance someone’s life with someone else’s right or interest. Therefore, if the State recognises the unborn child as a person, you may only balance his/her life with the life of another person, that of the mother. It is not possible to balance on the one hand the compared value of the will of the mother and that of the life of the unborn child. Neither the value of a will nor of a human life can actually be estimated, let alone be compared to each other. It is therefore important to understand that the question of the status of the unborn child in national legislation takes precedence over the status of the “woman’s right” upon life of her unborn child. Balancing the will of the mother against the life of the unborn amounts to evaluating the power of the woman over the life of her child. This explains why almost all the case-law of the Court on abortion concerns extreme cases, cases of abortions in the context of medical indications where the life or the health of the mother was at stake, rather than her pure will.
In the case of abortion on demand, (abortions which were not motivated by health reasons, but only by the will of the mother), the Court has never admitted that the autonomy of the woman per se, could suffice to justify an abortion in terms of Convention requirements. Moreover, the Court explicitly excluded this ground when it declared that Article 8, which protects individual personal autonomy, does not contain any right to abortion. Abortion on demand harms the unborn child without any proportionate motive. As this study will conclude, the legal arguments supporting the conventionality of carrying out an abortion on demand are very weak or even inexistent.
In a broader perspective, this study will look at the massive practice of abortion on demand as a result of a systematic failure by States to fulfil their obligations in regard to socio-economic rights. Indeed, most abortions are requested because of socio-economic constraints of the mother and family. This constraint and the resulting high number of abortions could be limited if States endeavoured to really fulfil their socio-economic obligations, according to which “special protection should be accorded to mothers during a reasonable period before and after childbirth” and that “the widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society”.[10] The fulfilment by States of their socio-economic obligations would go a long way towards helping women in crisis pregnancy and towards the implementation of a forgotten right: the “right not to abort”.
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[1] According to the Guttmacher Institute, “Facts on Induced Abortion Worldwide, in brief”, https://www.guttmacher.org/pubs/fb_IAW.pdf, last visited, November 20th 2012.
[2] G. O’Doherty, “UK peer warns on suicide clause”, The Independent, December 21 2012.
[3] Idem
[4] A. B. and C. v. Ireland, [GC], No. 25579/05, 16 December 2010.
[5] G. O’Doherty, “UK peer warns on suicide clause”, precit.
[6] See infra, text with footnotes 41-44.
[7] C. Zampas & J. M. Gher, “Abortion as a Human Right —International and Regional Standards”, Human Rights Law Review, 8:2(2008), p. 276. The authors refer to Krzyanowska-Mierzewska, How to Use the European Convention for the Protection of Human Rights and Fundamental Freedoms in Matters of Reproductive Law: The Case-law of the European Court of Human Rights, (Astra, 2004) at Part I (b)–(f).
[8] See inter alia, P. and S. v. Poland, No. 57375/08, 30 October 2012, para. 99.
[9] A., B. and C. v. Ireland, [GC], 16 December 2010, para. 249 and R.R. v. Poland, No. 27617/04, 26 May 2011, para. 187; P. and S. v. Poland, No. 57375/08, 30 October 2012, para. 99.
[10] International Covenant on Economic, Social and Cultural Rights, Article 10, paras. 1 and 2.
