Abortion under the European Convention on Human Rights

Writing my paper on abortion and talking about abortion in con law (yes I’m taking con law) made me wonder what the European Convention on Human Rights and the European Court of Human Rights say about abortion.

Most of the readers of this blog probably don’t know much about the European Convention on Human Rights or the European Court of Human Rights. Therefore I will start with some background knowledge.

The European Convention on Human Rights was adopted in 1950 under the auspices of the European Council (which has nothing to do with the European Union). All the member states of the Council of Europe have (and have to) ratify the convention. As of today, 47 states have ratified the Convention.

The Convention established the European Court of Human Rights to enforce the Convention. A person in a ratifying state who thinks that his or her rights under the Convention have been violated can take a case against the state to the Court. The decisions of the Court are legally binding upon the member states. The Court has 47 justices, one from each ratifying country. In the last couple of years the Court has decided between 700 and 900 cases a year. In the last 20 years or so the Court’s decisions have had great influence on the development of human rights in Europe.

The Court has decided a couple of cases regarding abortion. These cases have been decided under article 2 (right to life) and article 8 (right to privacy) of the Convention.

The wordings of these articles are as follows:

Article 2:

Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defense of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

Article 8:

Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The European Court of Human Rights decided a case on abortion for the first time in 1977 in the case Brüggeman and Scheuten v. Germany. In this case the Court upheld a German statute criminalizing abortion after the 12th week of gestation. The Court recognized that the right to have an abortion was a right protected under the right to privacy and family life in article 8, but that not every restriction was a violation of that right. It also found that an absolute prohibition on abortion would interfere with the woman’s life to privacy and family life. But no one has ever brought a case before the court arguing that an absolute prohibition on abortion violates the Convention. This means that the Court has not yet had a chance to hear such a case.

In the case Paton v. The United Kingdom (1980) the Court held that the termination of a pregnancy by an abortion did not violate the fetus’ right to life under article 2 of the Convention. This is because the fetus’ right to life does not outweigh the rights of the pregnant woman. The word “everyone” in article 2 does not include fetuses. The Court said that the fetus is inseparable from the pregnant woman and that the life of the fetus is intimately connected with and it cannot be regarded in isolation of the life of the pregnant woman. The Court’s holding that the life of the fetus is not protected under article 2 has been confirmed in later cases such as R.H. v. Norway, Boso v. Italy and Vo v. France. In the latter case the court said that “the issue of such protection has not been resolved within the majority of the Contracting states themselves… there is no European consensus on the scientific and legal definition of the beginning of life”

In the newest case on abortion from 2007 the Court decided a case where a Polish woman had been denied an abortion even though three doctors testified that carrying her pregnancy to term would endanger her health and seriously damage her eye sight. She gave birth to the child and became seriously disabled due to her now poor eye sight. Abortion on this ground would be legal according to Polish law, but the doctors in Poland are extremely wary of performing abortions even when they are legal. The Court held that the contracting states have an obligation to ensure that abortions are accessible when they are legal.

The European Court of Human Rights’ justification for a right for a woman to have an abortion is very similar, it seems, to the U.S. Supreme Courts justifications in Roe v. Wade. In Roe the U.S. Supreme Court held that a woman’s right to have an abortion was protected under the right to privacy and that the word “person” in the American Constitution does not include a fetus. One difference though, is that the European Convention on Human Rights contains an explicit right to privacy (article 8).

In U.S. Supreme Court decisions regarding abortion following Roe there have been a tendency to regard the right of a woman to have an abortion as a right to equal treatment for a woman instead of a right to privacy. This is the case in both the majority opinion in Casey and in the dissent in Gonzales. The same does not seem to be the case in the decisions of the European Court of Human Rights. It would be possible to make the argument, I think, since the Convention does contain a provision on equal protection:

Article 14:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.