Access to Abortion: Feminist Interpretation of the European Convention on Human Rights
EUROPE: ABORTION AND HUMAN RIGHTS
2023
Spyridoula KATSONI, «Towards a Feminist Interpretation of the ECHR’s Provisions on Access to Abortion», Völkerrechtsblog, 2023.
The author of this contribution first gives an overview of the jurisprudence of the European Court of Human Rights (hereinafter “the Court”) on abortion. She namely stresses that according to the Court, the European Convention on Human Rights (hereinafter “ECHR”) grants no right to abortion. In addition, the parties to the ECHR keep a broad margin of appreciation in the field of abortion (judgment of 16 December 2010, A, B and C v. Irland , §§ 80, 233 and 236). Furthermore, the Court considered that allowing abortion in Irland only when the life (and not only the health) of the pregnant person was at risk did not exceed this margin of appreciation of Irland because it followed the legitimate aim of protecting the morals of the country (idem, § 227) and it was possible for pregnant persons to travel in other countries for abortion, so that a fair balance between competing interests had been struck (idem, §§ 239-241). However, when abortion is allowed in domestic law, the right to respect for private life (Art. 8 ECHR) requires this abortion to be accessible in practice (judgment of 26 May 2011, RR v Poland , § 210 and 214; see Newsletter 2021#2 ). The prohibition of inhuman and degrading treatment (Art. 3 ECHR) is also violated, inter alia , if a pregnant, rape survivor teenager is obstructed from using her right to abortion (judgement of 30 October 2012 , P and S v. Poland, §§ 157-169; see Newsletter 2021#2 ).
The author criticises this jurisprudence. She namely points out that basing access to abortion on travelling is discriminatory because abortion travelling is not financially accessible to everyone. She also explains that the justification of the access to abortion for pregnant persons should not depend on their vulnerability such as the fact that they are young or have been raped because this victimises them. In addition, the author argues that abortion restrictions are in fact pursuing the illegitimate aim of controlling sexuality and preserving traditional gender roles instead of protecting the foetal life. She therefore considers that no balance should be struck between the rights of the pregnant person to abort and the interests of the “foetus” or the interest of the “father”.
Direct link to the article (https://voelkerrechtsblog.org)
Direct link to the Editorial of our Newsletter 2022#3 on abortion issues in the USA, in Poland and in Switzerland in German and in French (see also our Newsletter 2020#3 on the judgement of the Constitutional Court of Poland of 22 October 2020 restricting the abortion rights).
Gender Law Newsletter FRI 2023#4, 01.12.2023 - Newsletter abonnieren