Symposium–The Croatian Constitutional Court’s Abortion Decision: Finding Common Ground Amid Differences in Approach

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

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—Sonia Human, Stellenbosch University, Faculty of Law

It is clear from a reading of the judgment as a whole that the issue of termination of pregnancy has moved beyond the somewhat emotional debates associated with pro-life and pro-choice arguments. As a matter of fact, one can even question if terminology such as “pro-life” and “pro-choice” are still appropriate to capture the intricacies, nuances, sensitivities and realities surrounding  a termination of pregnancy. What is evident from the judgment of both the majority and the minority, is that, viewed from a legal perspective, termination of pregnancy is now firmly located within the framework of a constitutional dispensation. Terminology such as “rights”, “infringement of rights”, “balancing of rights”, “constitutional values”  and “public interest”, now determine the content and nature of discussions. It is furthermore clear from both the majority and the minority judgments that it is first and foremost the task of the legislator to enact legislation that is aligned with constitutional values, taking into account the realities of pregnancy, the associated risks and the unique and undeniable bond between mother and child from the moment of conception. At the heart of the legislation is a decision-making process that reflects the foregoing and that will also withstand constitutional scrutiny.

Common Ground Between the Majority and Minority Judgments

The obvious common ground can be found in the fact that both judgments call for new legislation, admittedly based on differences in reasoning. Although worded differently, both judgments clearly envisage that the termination of pregnancy should not be based on complete freedom of decision making. The majority, for example, calls upon the legislator to “to prescribe educational and preventative measures…. , so that termination of pregnancy is an exception”. (My emphasis) (Page 66 para 50) The minority expects of the legislator to “assume a certain position and clearly and normatively objectify the permissibility criteria for such a procedure”. (My emphasis) (Page 73) This expectation set by the minority must be seen against the golden thread in its judgment, namely the severe criticism of entertaining an expression of free will as sufficient to terminate pregnancy because it is wanted. This explains the minority’s call for legislation that will set normative benchmarks for decision making in line with the Croatian Constitution and “in accordance with the current moral, worldview and cultural context of Croatian society”. (Page 74)

Differences in Approach

There is a substantial difference in approach which can be found in the point of departure for a legislative model. The majority was of the opinion that the Constitutional Court did not have the jurisdiction to decide when life begins but rather saw its role to examine legislation regulating the termination of pregnancy in order to determine if a balance is struck between competing rights and interests. Accordingly, in terms of section 21 of the Constitution, the majority was of the view that the unborn is not regarded as a human being entitled to the right to life, but rather a “protected value”. As such it is entitled to constitutional protection, but only to the extent that it is not in conflict with the woman’s right to privacy. (Page 64) This is therefore the point of departure for the legislative model and the challenge is to legislate on a decision making process that will find a balance between the relevant constitutional rights of the woman and the public interest in safeguarding the protection of the unborn.

The minority differed fundamentally from the viewpoint as set out by the majority. There is an attractive logic in the way that the minority engages with the question of when life begins. According to the minority it is the Constitutional Court that must make this decision and after careful consideration of comparative jurisdictions, international and regional law, there is no hesitation in finding that life begins at conception. (Page 81) (Whether this conclusion is sound or not is beyond the scope of this comment.) This is obviously a groundbreaking finding with far reaching consequences in the context of a discussion on the termination of pregnancy. Clearly, there is no room for an unfettered choice to terminate a pregnancy as this will be in clear conflict with the Constitution. This is clearly stated in the following words: “Therefore the impugned legislative model is contrary to the Constitution, because the legal possibility of dispensing with or terminating unborn life within the meaning of Article 15 of the impugned Act on the basis of unlimited subjective will represents a manifest violation of the constitutional obligation of state authority as set out in Article 21.1 of the Constitution’’. (Page 83) It is important to highlight that the minority judgment should not be seen as endorsing “pro-life” in the traditional sense of the word, nor undermining “pro-choice” as conventionally understood.  The value of the minority judgment should be seen as elevating the protection of the unborn, irrespective of whether as a value or as the right to life, as a crucial consideration in a decision making process without abandoning the essence of a constitutional dispensation.

Suggested Citation: Sonia Human, Symposium–The Croatian Constitutional Court’s Abortion Decision: Finding Common Ground Amid Differences in Approach, Int’l J. Const. L. Blog, June 18, 2019, at:
http://www.iconnectblog.com/2019/06/symposium–the-croatian-constitutional-court’s-abortion-decision:-finding-common-ground-amid-differences-in-approach