A look into the legal context of abortion Europe
The European Court of Human Rights (the Court) has issued several judgments on abortion, especially in recent years since the fundamental ruling of the Grand Chamber in A. B. and C. v. Ireland of 2010. In those cases, the Court found violations of the European Convention on Human Rights (the Convention) in specific situations where the life or health of the pregnant woman was endangered, or when the pregnancy was the consequence of rape. In this article, I will first identify the rationale of the Court on the matter of abortion, and secondly, observe how it applies to the vast majority of abortions practiced, i.e., “abortion on demand” (also called on request): abortions that are not justified by a matter of health, life, or rape, but by the free will of the woman.
Through its various rulings, the Court explicitly declared that abortion is not a right under the Convention: there is no right to have an abortion (Silva Monteiro Martins Ribeiro v. Portugal) or to practice it (Jean-Jacques Amy v. Belgium). The prohibition per se of abortion by a State does not violate the Convention, (Silva Monteiro Martins Ribeiro v. Portugal see also the case of the first two applicants who unsuccessfully complained of the prohibition of abortion on demand in A. B. and C. v. Ireland), but States can allow it for the sake of competing rights guaranteed by the Convention, i.e., the life and the health of the pregnant woman. In other words, it can be said that the Court tolerates an abortion if it is justified by a proportionate motive protected by the Convention.
It is uncontested, even by the promoters of a right to abortion, that there is no direct or indirect right to abortion on demand or abortion for socio-economic reasons in any international or regional treaty, including the European Convention on Human Rights (Ch. Zampas and J. Gher, “Abortion as a Human Right…” p. 287). Abortion on demand is illegal in three out of four countries in the world. When the Convention was drafted, abortion on demand was widely recognised as a crime (Brüggemann and Scheuten v. Federal Republic of Germany § 64). It is true that the absence of right does not create a prohibition and vice versa, but legal arguments supporting that abortion on demand does not damage the Convention do not resist the analysis. Applying the reasoning and case law of the Court to such claims of abortions fails to find any justification under the Convention.
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 stressed several times that “once the State, acting within its limits of appreciation, adopts statutory regulations allowing abortion in some situations… 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” (A. B. and C. v. Ireland § 249; R. R. v. Poland § 187; P. and S. v. Poland § 99; see also Tysiac v. Poland, § 116).
This wording became the principle underpinning the regulation of abortion by the Court. Therefore, States are free to decide whether to allow abortion, but once the national legislature decides to legalise it, the Court can assess its legal framework by looking for whether, in the specific situation at stake, a fair balance was struck between the various rights and interests involved in the issue. As the Grand Chamber simply stated, “It is also clear from an examination of these cases