Symposium–The Croatian Constitutional Court’s Abortion Decision: A Nominal Win for Reproductive Freedom

[Editor’s Note: I-CONnect is pleased to feature a three-part symposium on the Croatian Constitutional Court’s 2017 ruling on abortion. The symposium is kindly organized by Professor Djordje Gardasevic. The Introduction to the symposium is available here. This entry is the second of three parts in this symposium.]

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–Ana Horvat Vuković, Assistant Professor of Constitutional Law, University of Zagreb, Faculty of Law

Hailed in liberal circles as an historic decision, the 2017 ruling of the Croatian Constitutional Court upheld the constitutionality of non-medically (or socioeconomically) indicated abortions within the first 12 weeks of pregnancy.[1] It extensively considered comparative constitutional jurisprudence as well as case law of the ECtHR in a welcome show of cross-jurisdictional constitutional dialogue on matters relating to the termination of unwanted pregnancy. In its efforts to consider all relevant arguments, the Court requested expert opinions from a plethora of family law experts, bioethicists and (Catholic) theologians, but puzzlingly contacted a single constitutional law expert.[2]

Interpreting the Croatian Constitution’s Art. 21 right to life of every “human being,” the Court embraced ECtHR’s stance on the practical mootness of the exact pinpointing of the beginning of “life” and personhood of a “human being” (§27.1-2 of the Decision). This follows unequivocally from its willingness to enter into a balancing act between a woman’s right to privacy (Art. 35 CC), freedom and personality (Art. 22 CC), and a generally construed “constitutional value” and public interest in preserving (unborn) life (representing a State’s positive obligation implicit in the Art. 21’s negative right to life).

Upholding the impugned act as decisively constitutional even while explicitly relegating the issue of a precise interpretation of Art. 21 CC’s terms to the legislative arena (§45.1 of the Decision) means that even if “life” were to be deemed to begin at conception, Art. 21 would remain a limited right amenable to be counter-weighed in a proportionality analysis that could not result in a prohibition of abortion. Arts. 22 and 35 may thus be balanced either against Art. 21’s negative aspect (in the event the nasciturus is legislatively granted an independent right to life) or its positive one (State’s obligation to protect life as a “constitutional value”). However, their respective importance is always to be mutually weighed against the fulcrum of the constitutional telos of dignity (§41.2. of the Decision), and this prohibits an obliteration of either of the opposing values/rights.

Whereas the preservation of hard-won rights to reproductive autonomy is to be lauded, the Court’s reasoning falls short of an unassailable protection of women’s rights. This is primarily due to a comparatively preferred but flawed use of “privacy” as a bedrock for the right to abortion. One may regret the missed opportunity to recognize the crux of the abortion issue as lying not in a subjective right to “privacy” (prone to be narrowly construed as a right to a “lifestyle”[3], paired as it is with the right to “honor” and “reputation” and situated between the right to inviolability of the home, and freedom and secrecy of personal communication), but rather in the Art. 3 and 14 CC rights to substantive gender equality.

The right to abortion is quintessentially an issue of equality, its legal packaging often codifying stereotypes about gender roles into a functional gender-caste regulation. The ramifications of such a choice are at least twofold. Regarding the issue of the financial burden, anti-subordination principles would call for public funding of abortions (also ending indirect discrimination of indigent women).[4] Secondly, they would narrow the legislature’s latitude in designing a procedural framework for the nominally granted right to abortion. This would negate the Court-sanctioned (see §50 of the Decision) legislator’s right to institute mandatory pre-abortion counseling[5] as patronizing to women (cf. §5.1. of the Decision), and would call for a constricted reading of physicians’ rights to a “conscientious objection” to the performance of abortions.[6]

Suggested Citation: Ana Horvat Vuković, Symposium–The Croatian Constitutional Court’s Abortion Decision: A Nominal Win for Reproductive Freedom, Int’l J. Const. L. Blog, June 16, 2019, at:
http://www.iconnectblog.com/2019/06/symposium–the-croatian-constitutional-court’s-abortion-decision:-a-nominal-win-for-reproductive-freedom

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[1] “[W]ithin ten weeks from conception” – Art.15.par.2 of the impugned Act, erroneously restated in §46 of the Decision. Therapeutic (medically indicated and in cases of embryopathy) and criminologically-indicated abortions are untouched by this preclusive threshold (Art.22 of the Act).

[2] We deem this an oversight, seeing as abortion is a human rights issue rife with constitutional law implications.

[3] See §7.par.8 and §14 of the single dissenting opinion.

[4] §50 of the Decision leaves the choice of which, if any, abortions should be publically funded to the legislator.

[5] §50 of the Decision speaks of an “appropriate deliberation period” coupled with counseling on available rights/assistance. It clearly allows such counseling to be mandatory, since imposing a waiting period on voluntary counseling would (in practice) deter expectant mothers from using such counseling in the first place. As such, it would be contrary to the State’s positive obligation to promote life under Art. 21 CC.

[6] §50 of the Decision leaves the decision whether to regulate this objection more strictly to the legislator. The current Physicians Act leaves patients under-protected in this regard, with whole hospitals refusing to perform abortions, resulting in a clear violation of constitutional standards that abhor illusory rights.