Constitutionalising a Right to Abortion: Unveiling its Transformative Potential Amidst Challenges in Europe
(2024) European Constitutional Law Review — Vol. 3, n° 20, p. 361-391 (2024)
Files
constitutionalising_a_right_to_abortion_unveiling_its_transformative_potential_amidst_challenges_in_europeV0212.pdf
Open Access - Adobe PDF
- 344.15 KB
Details
- Authors
- Abstract
- Several calls for a constitutional right to abortion have emerged in European jurisdictions in response to the United States Supreme Court’s ruling in Dobbs v Jackson Women’s Health Organisation (2022). In this landmark judgment, the Court unequivocally rejected an interpretation of the Constitution that would imply a right to abortion, opting instead to delegate the authority to regulate abortion to the individual states and their representatives. The decision overruled long-standing precedent, primarily established by Roe v Wade (1973) and Planned Parenthood v Casey (1992). Commentators had long forecasted a setback in abortion rights in the US, attributing it to judicial activism in an increasingly conservative Court. In Europe, the rise of far right and religious extremist movements has similarly fuelled concerns over drawbacks of established abortion rights. Collectively, these dynamics have heightened vigilance and prompted calls for a solidification of the right to abortion at the European supranational and national level. In the EU, the European Parliament recently cautioned against global threats to abortion rights and urged the recognition of the right to abortion in the EU Charter of Fundamental Rights.At the national level, including in France, Belgium, Norway, and Sweden, various efforts to enshrine a right to abortion in constitutions were made. But the subject of embedding abortion rights in the constitution does not fail to attract scrutiny. Legal scholars and various legal and policy bodies have particularly questioned the necessity, suitability, and added value of constitutionalising11 a right to abortion within European-national contexts. In this article, we begin by reviewing these controversies, including potential limitations of constitutionalisation identified in wider scholarship on abortion law. We then examine the validity of opposition to constitutionalisation by uncovering the functions that constitutionalisation of a right to abortion would fulfil, guiding our conclusions on the added value of an explicit constitutional right to abortion. Building on the previous two sections, the third section explores various constitutional design challenges and pathways associated with the constitutionalisation of a right to abortion, based on a comparative case study focusing on Belgium. Our findings suggest that constitutionalisation of a right to abortion would fulfil an important symbolic function in that it reflects the fundamental nature of reproductive rights, including abortion. In addition, constitutionalising a right to abortion could procedurally succeed in limiting the interpretative margin afforded to future interpreters of constitutional norms, reducing the risk at exacerbation of a right which, by its very nature, remains controversial and vulnerable. However, as we will demonstrate, the extent to which this limiting potential is realised and the added value of constitutionalisation achieved will be highly dependent on the constitutional design, for which we identify and discuss various options.
- Affiliations
Citations
Fien de Meyer, & Romainville, C. (2024). Constitutionalising a Right to Abortion: Unveiling its Transformative Potential Amidst Challenges in Europe. European Constitutional Law Review, 3(20), 361-391. https://doi.org/10.1017/S1574019624000257 (Original work published 2024)