Abortion: A Constitutional Problem in European Perspective
| DOI | 10.1177/1023263X9400100104 |
| Published date | 01 March 1994 |
| Date | 01 March 1994 |
| Author | Caroline J. Forder |
| Subject Matter | Article |
Caroline 1. Forder *
Abortion:
A
Constitutional
Problem
in
European
Perspective
Introduction
Abortion remains a knotty constitutional problem in many European countries
..
Some-
times the issue appears to be purely a question for domestic law. On the occasions on
which the European Commission for the Protection of Human Rights (hereafter: the
Commission) has been asked to rule on the compatibility
of
some aspect
of
abortion law
'the protection of morals' is primarily a matter of domestic concern. I
But recent developments have shown that abortion also has a transnational character.
The great discrepancies in approach to the law of abortion; some countries forbidding
abortion altogether, others allowing it, within certain limits, are causing enormously
difficult constitutional problems.
It
is no longer possible for one country to regulate
abortion without regard to what is happening elsewhere in Europe. Both the European
Court of Justice (hereafter: the ECJ) and the European Court for the Protection of
Human Rights (hereafter: the European Court) have bared their teeth, and shown that
there are certain minimum standards which must be met.
This article will investigate the constitutional limits
of
abortion in Europe, considering
the laws in a number of countries and the limits laid down by the European institutions.
The purpose therefore of this article is twofold; first, to put together many domestic and
European developments to provide a broader picture through comparative law; second,
*Lecturer in Law at the University of Limburg(NL). I would like to thank M. Hamers, of the
Bourgogne KIiniek, Maastricht, whofirst made me ware of the problem of abortion migration. Respon-
sibility for any factual inaccuracies, including the translations from Dutch and German, or any errors
of judgment or taste in the opinions expressed, rests with the author.
I. Paton v U.K. (1980) 3 EHRR 408; X v Austria, 10 Dec 1976, AppI. 7045/75, D&R 7 (1977),87;
Bruggemann &Scheuten 12 July 1977, Appl. 6959/75 D &
RIO
(1978), 100; Here: v NO/way, AppI.
17004/90.
56 MJ 1 (1994)
ICaroline 1. Forder
to investigate the common threads as well as the points at which the contrast in
approach seems impossible of compromise.
The article is in two parts. In the first part the various options, found in various Euro-
pean countries, for regulating abortion will be discussed. The advantages and disadvan-
tages of each option will be considered and compared. Secondly, the approach to abor-
tion under the German Basic Law will be considered, including the most recent decision
by the Federal Constitutional Court. The lessons from German law for Ireland, but also
for other European countries, will be indicated.
§1. The Field of Choice
A.
ABORTION IS PROHIBITED UNLESS THE WOMAN'S LIFE IS IN DANGER.
This is the position in Ireland. The Eighth Amendment to the Constitution Act 1983 2
introduced a new section into the Irish constitution: Article 40, s. 3 subs. 3, which
provides:
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.
Under this type of abortion provision, three issues arise; the meaning of the woman's
right to life, the right to travel and freedom of information.
1. The woman's right to life
Inherent in this clause is some weighing up of the conflicting rights to life of the mother
and unborn child; however, no specific legislation has been enacted in Ireland to indi-
cate how these interests might be weighed against one another. The decision of the Irish
Supreme Court in Attorney-General v X and Others 3shows that the balance contained
in Article 40, s. 3 subs. 3 is quite unworkable, unless a rather extended meaning is
placed upon the meaning of 'life' in relation to the mother.
An applicant was aged fourteen-and-a-half years when she discovered, in January 1992,
that she was pregnant. The pregnancy was the result of a crime perpetrated upon her;
certainly the crime of 'unlawful carnal knowledge' of a minor, and rape was also
alleged but not yet established. As a result of her predicament the girl was suicidal. The
girl and her parents decided to travel to England to obtain an abortion there. Before
departing for England, the parents informed the Garda Siochana (the police) of the
2. On the Irish constitution, see, generally, J Kelly, The Irish Constitution 2ndEd. ,(Jurist Publishing Co.,
1984).
3. 13 Human Rights Law Journal 5th March 1992, No. 5-6, 210-229.
MJ 1 (1994) 57
IAbortion: A Constitutional Problem in European Perspective
plan, and inquired whether there was any procedure by which the aborted foetus could
be tested to provide evidence of identity in the pending rape proceedings. The police
submitted the request to the Director of Public Prosecutions who referred the matter to
the Attorney General. On 7th February 1992 the Attorney General obtained an interim
injunction from the Irish High Court (Mr Justice Costello) restraining the girl from
leaving the country and arranging or carrying out the abortion. By this time the family
was already in England, but, in compliance with the order, they returned. In interlocu-
tory proceedings on 17th February 1992, the High Court ordered (a) that the girl be
restrained from interfering with the right to life of the foetus (b) that she remain in
Ireland for the next nine months (c) that no one procure or arrange for an abortion.
The girl and parents appealed to the Supreme Court. They alleged, inter alia: a failure
by the Oireachtas (Irish parliament) to enact legislation reconciling the rights of the girl
and unborn child; an incorrect balance by the High Court of the rights of the girl and
unborn child; restriction of the girl's right to travel under the Constitution and under
European Community Law; restriction of the girl's freedom to receive services under
Article 59 EEC Treaty. The Supreme Courtheld, on 5th March 1992, by a majority of
four out of five, Mr Justice Hederman dissenting, that the appeal should be allowed.
The Supreme Court held that the lower court had not balanced the rights of the girl and
the unborn child correctly. The majority said that the correct test was whether there was
a 'real and substantial risk to the life as distinct from the health ofthe mother', and they
held that the risk of self-destruction was 'real and substantial' in the present case. The
Supreme Court did not consider the issues which might have arisen under European
law, because their decision on the balancing question made such decision unnecessary.
The judges did, however, make obiter statements on the question of the right to travel
guaranteed by the Irish constitution.
The test which Mr Justice Costello in the High Court had applied in balancing the right
to life of the girl and the minor gave equal weight to each life, ignoring the contingent
character of any unborn life, and at the same time placing reliance upon the avoidability
of the girl's suicide. He said:
But the risk that the girl may take her life, if an order is made, is much less
and of a different order of magnitude than the certainty that the life of the
unborn will be terminated if the order is not made. I am strengthened in this
view by the knowledge that the young girl has the benefit of the love and
care and support of devoted parents who will help her through the difficult
months ahead. 4
4. Ibid, 213 first co!'
58 MJ I (1994)
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