Toward a New European Abortion Constitutionalism?

—Ruth Rubio Marin, European University Institute

Modern constitutionalism, born at the end of the 18^th century with the French and American Revolutions, is a historically grounded venture. At the time, women did not enjoy civil equality, their freedom being largely dependent on their marital status, nor political citizenship–female enfranchisement not becoming a widespread reality until well after the turn of the century. As such, women were unable to seize the historical opportunity to articulate their views about how the enlightened ideals of liberty and equality should be concretely spelled out, about which specific expressions of human autonomy should be deemed so fundamental to be constitutionally enshrined, or about what philosophical understanding of human autonomy among competing alternatives should prevail.

In this context, it is not surprising that the freedom to decide whether or not to beget children, endure pregnancy, give birth, and become a mother were not considered constitutional in substance; and neither was the importance of a fair distribution of the costs entailed by human reproduction. It is my purpose here to discuss recent developments in the European constitutional abortion jurisprudence claiming the constitutional substance of both these matters. In the process, I will also signal the ways in which such developments depart from prior, dominant jurisprudential constructions of the abortion question.

In both North America and Europe, abortion constitutionalism started jurisprudentially, and not before the 1960s. This was a time when the patriarchal family model was being challenged by second-wave feminism, and when broader health concerns linked to the high morbidity of illegal abortions  called for the liberalization of abortion legislation. At the same time, Church leaders were engaged in resisting this liberalization, invoking the sanctity and dignity of life.[1]

The Roe/Casey Paradigm: Pregnant Women as Private Decision Makers

Abortion constitutionalism was born on both sides of the Atlantic within this context.

The first case was Roe v. Wade.[2] The landmark 1973 US Supreme Court decision read women’s reproductive freedom into a silent constitutional text, endorsed a trimester framework and affirmed a woman’s–and her practitioner’s–right to decide whether or not to terminate her pregnancy, banning any kind of state interference in the first trimester, and allowing, but not imposing, a limit or ban on abortion after the point of viability.[3] Later case law, especially Planned Parenthood of Southeastern Pennsylvania v. Casey,[4] departed from Roe’s strict trimester scheme, affirming that, so long as the law did not impose an “undue burden” on the pregnant woman’s decision, the state could assert an interest in protecting unborn life throughout the term of a pregnancy.[5] Although under this standard many States have validly passed legislation imposing explicitly dissuasive counselling as a way to deter women from having abortions, in the European imaginary Roe has remained “the American paradigm.”

For the European audience, the Roe paradigm has continued to symbolize the basic framing of the abortion question, in constitutional terms, as one of letting women freely decide whether to continue with their pregnancy up to a certain point, and basically free from both state interference and/or assistance. Under this paradigm, the protection of the fetus by the state is not constitutionally grounded, thereby remaining a may and not a must. Neither does this paradigm articulate a vision of human reproduction which distinguishes it from other important, but strictly private, choices that people may have. Reproductive autonomy, to the extent that it has been read into the Constitution, is interpreted as freedom from interference with the decision to discontinue pregnancy, not as forcing the state to provide an enabling environment for motherhood or parenting.

Around the time of Roe, Europe saw the emergence of constitutional litigation around abortion as well. Between 1974 and 1975, constitutional decisions on abortion saw the light of day in Austria, France, Italy, and Germany. However, with the notable exception of Austria, where the Constitutional Court refused to give unborn human life any constitutional standing,[6] most Constitutional Courts in Europe–unlike in the US–from the beginning relied on different provisions and doctrinal constructions to “read in” silent constitutional texts the protection of the fetus.

For most European Courts, protecting unborn human life has always been a constitutional must, never just a may.  And although some Courts, including the Austrian and the French Courts,[7] supported their respective legislators in moving towards more expansive abortion legislation from the beginning, it was the German Federal Constitutional Court’s 1975 Abortion Decision striking down a legislative attempt to decriminalize abortion during the first twelve weeks of pregnancy which came to have paramount influence on abortion constitutionalism in Europe and beyond.[8] Thus, with only some famous exceptions, more and more European legislators have in fact come to embrace a periodic model, or a very lax interpretation of the indications model, allowing women to decide in the early stages of pregnancy, and even provided for publicly funded abortions. Nevertheless, constitutionalism as such has often been a reactive force slowing down the liberalization process, at least in those countries influenced by the German doctrine placing the value of human life at the center stage. This may now be changing.

The German Paradigm: Pregnant Women as Dutiful Mothers

In summary, the 1975 German Constitutional Court Abortion decision framed the constitutional question around abortion as one about the protection owed to the fetus, which the Court grounded on the constitutional protection of the right to life and the value of human dignity under articles 1 and 2 of the German Basic Law. This in turn entailed rendering pregnant women, constitutionally speaking, “motherhood duty-bearers.” Granted, the duty to become a mother could be superseded in extraordinary circumstances (such as those typically reflected in an indications model).[9] Yet even when for strategic reasons the legislator felt compelled to abandon criminalization, abortion remained a wrong which the legal order was always under the obligation to condemn, and pregnant women, potential mothers who were always to be reminded of their duties.[10]

It was precisely such strategic reasoning that prevailed in the German Court’s second abortion decision adopted in 1993.[11] Confronted with new legislation approved after the German reunification, which sought common ground with the more liberal abortion legislation in the East, in 1993 the German Court openly accepted the limits of criminal law in deterring abortions, and the possibility of substituting punitive by preventive forms of protection to save the life of each individually conceived fetus.

However, the Court argued that preventive measures had to be sufficiently effective. Thus, the validation of the periodic model was made dependent on it being supplemented with mandatory, explicitly dissuasive-counselling geared towards putting pressure on women to fulfill their motherly duties–as well as on the adoption of proactive measures by the state to acknowledge the crucial importance of human reproduction, ensuring both responsible conception and a socialization of the burdens and costs entailed by parenting.[12] In other words, under this paradigm, pregnant women still bore a duty of motherhood, but the costs of human reproduction were to be acknowledged and shared by society as a whole.

The Portuguese Way: From Saving Fetuses to Respecting Life and Women

At the turn of the century, we can observe an interesting doctrinal shift, pointing to changes even within those constitutional systems which were inspired by Germany’s framing of the constitutional abortion debate. This primarily effects the abandoning of punitive measures and the endorsement of a time-frame solution–accompanied by measures to promote responsible conception as well as enabling reproduction–as more than just as a regrettable concession to strategy, i.e. the best way to reduce the number of abortions. Instead, the model is presented as representing a balancing of constitutional principles recognizing women’s reproductive autonomy, and not only the life of the unborn, as having constitutional standing and as calling for positive measures of protection by the state.

One of the clearest expressions of this doctrine is to be found in the abortion constitutionalism of Portugal, which started out by incorporating the German framework to validate the indications-based model,[13] but has found ways to depart from it, allowing it to recognize–at least since 1998[14]–the constitutional validity of a periodic model, and to do so on principled grounds related to women’s reproductive autonomy.[15]

In 2007, Portugal, an overwhelmingly Catholic country, passed legislation allowing women to decide freely during the first 10 weeks, after mandatory, but not explicitly dissuasive, counselling whether to have a publicly funded abortion. [16] This legislation was constitutionally validated in a 2010 decision by a strongly divided Constitutional Court.[17]

In that same year, Spain passed legislation, departing from a lax enforcement of the indications model, which assigned women the right to decide freely during the first 14 weeks of pregnancy, after mandatory, but not explicitly dissuasive, counselling.[18] Whether the legislation fits constitutional standards will soon have to be decided by the Spanish Constitutional Court whose prior doctrine, backing the indications model in place until then, was also influenced by their German counterpart.[19]

The core of this new abortion doctrine, as best articulated by the Portuguese 2010 decision, is that it is still the duty of the state to protect what the Portuguese Court calls intra-uterine life, a duty the Court bases on article 24.1 of the Portuguese Constitution, declaring “human life inviolable”. However, under this model, the unborn is explicitly not considered a rights holder, but only the embodiment of a constitutional value, a doctrinal distinction which is said to have a bearing on the type of protection owed to it. Human life, although deserving some form of protection from inception, is conceived as an evolving process with qualitatively relevant milestones, thereby allowing different degrees of protection to accompany the unfolding process. Crucially, the model also recognizes that women’s reproductive rights and interests–covered by generic constitutional provisions referring to the free development of their personality and self-determination–matter, and therefore, the state’s duty to protect life cannot automatically be translated into a normalization of pregnant women’s duty of motherhood.

This new abortion constitutionalism is based on a shift in perception of the ‘aborting woman’. She is now being constructed as being fully aware of all factors relating to the possible termination of a pregnancy, a decision that she will not make lightly, or out of selfish or hedonistic reasons, but rather influenced by the existence of adequate means and support (or lack thereof), or out of the conviction that she must avoid inflicting substantial harm unto others and herself.[20]

Thus, unlike the second German abortion decision, this construction supports the periodic abortion model both on efficiency and principled grounds: punitive measures are not considered adequate means to limit the number of abortions and at the early stages of pregnancy the best protection of the unborn can only be the protection of the pregnant woman it is the pregnant woman who is best placed to evaluate and determine the best outcome for both herself and the unborn child. This requires trust in women’s judgment but also the provision of means and relevant alternatives to women duly taking into account that what is generally at stake for them when confronting the decision is not just the biological process of pregnancy and delivery, but also the life-long task of mothering.[21]

The constitutional validation of the time-frame solution under this new constitutionalism is principled and not merely a concession to strategy. As such the autonomy and dignity assigned to pregnant women in the reproductive domain also have an impact on the nature and characteristics of the counselling procedure that may accompany the abortion procedure.

In particular, the Portuguese Constitutional Court, in 2010, recognized that endorsing explicitly dissuasive-counselling to pressure women into motherhood could not be considered a necessary requirement for upholding the periodic model, thereby expressly distancing itself from the 1993 German Abortion decision. The Court affirmed that understanding women as responsible and aware of the factors that speak against abortion simply could not be reconciled with an infantilizing and paternalistic counselling system.[22]

The vociferous dissents in this decision, and all along the Portuguese constitutional abortion history, illustrate the difficulty of departing from a constitutional reasoning, which places the fetus or intra-uterine life at the center, to then conclude that at the early stages of pregnancy the protection of life requires the protection of women as responsible decision makers regarding life issues and even when what they are to decide is to discontinue their pregnancies.

In the end, reconciling the respect owed to human unborn life and a woman’s reproductive autonomy in this way requires the acceptance of the fact that the protection of unborn human life may not be as much about maximizing the actual number of fetuses that make it to full human beings, as it is about placing human reproduction at the center stage. Doing so requires that the reproductive process be neither trivialized nor “privatized.” Education policies seeking conscious and responsible conception must be adopted and a reproduction friendly society secured.

The combination of the fact that human reproduction cannot be minimized and that women have a right to be full and equal citizens, with the freedom to choose for themselves how to best structure their life, means that the state cannot expect women to act as mere reproductive vessels. Instead, the state must create the conditions to ensure that their disposition to pregnancy and mothering is truly free. Under this new abortion doctrine all of this is constitutional in substance.