Constitutional framings of the right to abortion: A global view Free

Abstract

1. Constitutions’ silence on the right to abortion

Of the 202 constitutions in the Constitute database, 24 address the issue of human reproduction.¹ They differ in the way they frame it and, in particular, in their definitions of right holders and duty bearers. Three constitutions—those of Kenya,² Somalia,³ and Eswatini (formerly Swaziland)⁴—explicitly prohibit abortion, except in certain cases specified in their provisions or in statutes. Jamaica’s constitution states that “offences against the life of the unborn” are not subject to judicial review for compatibility with the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act of 2011.⁵ In Europe, the Slovak⁶ and Hungarian⁷ constitutions expressly grant protection to human life from the moment of conception. A similar provision on the right to life of the unborn was introduced into Ireland’s constitution in 1983 but repealed by referendum in 2018.⁸

Other constitutions recognize the right to have children. Indonesia’s constitution, for example, guarantees a right of procreation based on legal marriage.⁹ Thus framed, this right primarily implies the positive freedom to procreate. Similarly, the constitutions of Nicaragua¹⁰ and Serbia¹¹ emphasize the role of the state in promoting human reproduction. By contrast, the constitutions of Brazil,¹² Guatemala,¹³ Paraguay,¹⁴ and Venezuela¹⁵ refer to the protection of the family and responsible parenthood, but proclaim the right of parents or couples to decide on the number of children they have and the spacing between them. The language used by these constitutions points to the negative freedom not to have a child. These four constitutions limit the state’s obligations to the provision of access to scientific information and sex education. Ethiopia’s constitution, for its part, guarantees the right to family planning education, information, and capacity only for women.¹⁶

The most liberally framed constitutions recognize the freedom of all individuals to exercise sexual or/and reproductive rights. They acknowledge, first, that such rights exist and, second, that persons of both sexes are free to exercise them. Accordingly, freedom to procreate implies both the right to procreate and the right not to procreate, but leaves open the question of whether the latter includes the right to terminate a pregnancy. Guarantees of reproductive freedom can be found in the constitutions of Bolivia,¹⁷ Cuba,¹⁸ Kosovo,¹⁹ North Macedonia,²⁰ Serbia,²¹ Slovenia,²² South Africa,²³ and Zimbabwe.²⁴ The liberal formulation of reproductive rights in these constitutions is a result of the involvement of international experts in the drafting process and mobilization of women’s organizations.²⁵ It should not be forgotten, however, that, despite clear similarities in how these constitutions frame such rights, there are marked differences in the extent to which they are implemented in these countries.

Lastly, we find constitutions that treat human reproduction as a matter of reproductive health and categorize it among social rights. The constitutions of Ecuador,²⁶ Kenya,²⁷ and Nepal,²⁸ as well as the 2020 draft constitution of Gambia,²⁹ emphasize that human reproduction falls in the area of health care and should be ensured to the highest possible standard. Again, this language does not clarify whether the right to reproductive health care includes access to abortion. Guyana’s constitution, for its part, establishes the Women and Gender Equality Commission, whose purpose is to promote research on women’s and gender-related issues, including reproductive health.³⁰

At the present time, no national constitution positively affirms a right to abortion.³¹ Chile’s draft constitution of 2022 contained the most comprehensive formulation of reproductive rights, including a right to “voluntary interruption of pregnancy,”³² but it was rejected in a nationwide referendum. Although not directly related to the progressive formulation of reproductive rights in the draft constitution, the constitution’s rejection suggests that a deeper cultural change is needed—one that has not yet occurred in Chile.³³ Following the infamous Dobbs ruling by the US Supreme Court in June 2022,³⁴ several governments in Europe, however, are considering constitutional amendments that would safeguard against lowering levels of access to abortion. Also, the European Parliament has recently called for the right to abortion to be included in the EU Charter of Fundamental Rights.³⁵

Can it therefore be argued that in this day and age sexual and reproductive rights need to be incorporated in constitutions in order for the latter to have political and social legitimacy. If so, does a constitution’s silence on reproductive rights require courts to read that lacuna anew and to affirm the existence of rights that were not written explicitly into the original text?

2. Courts’ interpretations of the right to abortion

Judicial interpretations amounting to the affirmation of a right to abortion occur mainly where constitutions are silent on the subject. In such cases, judges derive the existence of such a right from other constitutional guarantees. Judges’ views on abortion vary not only from jurisdiction to jurisdiction, but also over time. In the 1973 Roe v. Wade ruling, the US Supreme Court set a precedent affirming the existence of a right to abortion³⁶ and then reversed it in Dobbs in 2022. The Dobbs ruling, however, goes against what appears to be a worldwide trend toward judicial decisions liberalizing abortion bans³⁷ and legislative measures decriminalizing abortion.³⁸ This trend is also reflected in a shift in the argument on reproductive freedom, from one based on justifications for state interference in women’s negative liberty to one based on the failure of the state to fulfill its obligations in the area of reproductive health.

Taking a global perspective, we can distinguish four doctrinal approaches taken by courts in affirming reproductive rights, including the right to abortion. First, courts derive reproductive rights from constitutional guarantees of liberty (self-determination), understood in negative terms as the individual’s freedom from state interference. This position fits into the model of liberal constitutionalism, marked by a clear separation between the public and private spheres.³⁹ This approach is illustrated by the US Supreme Court ruling in Planned Parenthood v. Casey,⁴⁰ which grew out of earlier jurisprudence based on the concept of privacy as the right to be left alone.⁴¹ Privacy is here considered as a subset of negative liberty, and the criminalization of abortion is tantamount to an intrusion that the state must justify. In a similar vein, Canadian⁴² and German⁴³ courts have weighed the criminal law interference with a woman’s fundamental rights—to personal security, autonomy, and in particular the right to determine the fate of her pregnancies—against the state’s duty to protect human life.⁴⁴ In so doing, they, too, have applied the liberal model of constitutional rights and the attendant obligation for states to justify criminal law intrusions in the private sphere.⁴⁵

The second approach is founded on the principle of equality and the model of transformative constitutionalism.⁴⁶ In transformative constitutionalism, equality is considered a means of remedying social (and past) injustices to create a better society. This approach sees the protection of women’s reproductive rights as essential to ensuring their equal status in society, for bans on abortion amount to the unequal treatment of women, especially as there are no comparable criminal laws regulating men’s private life choices. This approach is primarily informed by the Convention on the Elimination of All Forms of Discrimination Against Women.⁴⁷ Since the United States is not a party to the Convention, the transformative gender equality argument pursued by the Convention’s monitoring body, the Committee on the Elimination of Discrimination Against Women, has prevailed in only one US state court.⁴⁸ The US Supreme Court has indeed been unwilling to accept that restrictive abortion laws perpetuate gender stereotypes and structural discrimination.⁴⁹ The equality argument also brings to light the problem of intersectionality and, above all, discrimination against the poor in abortion bans.⁵⁰ More often, however, the discrimination claim appears ancillary to the main charge of violation of other fundamental rights and freedoms;⁵¹ as a consequence, equality has a weaker, nonautonomous constitutional status and expresses the right to equal enjoyment of other fundamental rights and freedoms, rather than being a self-standing substantive right.

The third approach is anchored in the concept of social rights and the positive obligations incumbent on the state in that regard. It focuses on the social nature of access to abortion, which it treats as a matter of human dignity. It thus aligns with the perspective of the UN Committee on Economic, Social and Cultural Rights⁵² and of the Special Rapporteur on the right to health.⁵³ Under this model, restrictive abortion bans are viewed as a failure by the state to fulfill its positive obligations in the area of health care.⁵⁴ As an illustration of this approach, Nepal’s Supreme Court has held that “[t]he issue of abortion must not be confined to the question of whether or not to give birth to the fetus, and whether or not abortion can be undertaken; rather, it is an issue that has broader implications for overall women’s health.”⁵⁵ Similarly, Colombia’s Constitutional Court has affirmed that the criminalization of abortion not only violates the state’s negative obligation to respect women’s fundamental rights,⁵⁶ but it also goes against the state’s positive obligation to ensure that women, girls, and pregnant persons are able to enjoy their right to health,⁵⁷ which it recognized as an autonomous and justiciable right, stressing that the state’s obligations in relation to abortion are of the same nature as those concerning health care—namely, to secure the availability, accessibility, quality, and professional sustainability of the care.⁵⁸ This framing aligns with the theoretical concept of positive constitutionalism, which considers the state’s role to be that of an enabler of well-being.⁵⁹

The fourth, and most comprehensive, approach is illustrated by recent abortion decisions in India and Mexico. India’s Supreme Court has emphasized the dual nature of the state’s obligations toward women—first, to respect their choices and, second, to provide them with medical services. Further, it invalidates socially stigmatizing distinctions between single and married women.⁶⁰ Mexico’s Supreme Court, for its part, lists the conditions to be fulfilled by the state in order for women’s freedom of choice to be realized. However, it limits that freedom to the twenty-fourth week of pregnancy.⁶¹ These rulings adopt a perspective that combines elements of negative, transformative, and positive constitutionalism. The role of the state is here considered to be not only to guarantee a sphere free from interference, but also to eliminate social stereotypes and create conditions for the exercise of freedom. This approach should be contrasted with the case law of the European Court of Human Rights, which focuses on the state’s obligations to provide procedural guarantees for women’s rights as patients or victims of crime, but grants a wide margin of appreciation in determining the scope of protection of the life of the unborn.⁶²

3. Lifting the “veil of ignorance”

In the context of the above developments, the Dobbs ruling is an outlier. It responds to the demands of a section of American society, whose fear of losing social status has driven them into a cultural war, a war over tradition, family, and religion. At the same time, the Dobbs decision’s reliance on ideologically driven originalist reasoning to overturn Roe v. Wade evidences a disregard of the evolutive construction of a constitutional right to privacy and limitations on the scope of state power.⁶³ It also remained insensitive to the argument raised in the majority opinion in Casey that women’s ability to participate equally in the life of the nation depends on their ability to control their reproductive lives.⁶⁴ Like Dobbs, the ruling of Poland’s Constitutional Tribunal proclaiming as unconstitutional the statutory authorization to terminate pregnancies on grounds of fetal defects as unconstitutional was predicated on an ideological justification.⁶⁵ The Tribunal’s ruling was ultimately an act of judicial tightening of the already restrictive 1993 abortion law, adopted in repayment of a moral debt to the Catholic Church for its aid in the peaceful overthrow of communism in Poland.⁶⁶

What these decisions have in common is their display of ignorance on the part of their authors. Ignorance here refers to the state of mind of a judge largely immune to the repercussions of the decisions she or he passes down. When access to abortion is limited or prohibited, it is women on lower incomes (and in most cases who already have children) who are disproportionately impacted, so constitutional or supreme court judges are unlikely to be directly affected by their abortion rulings.⁶⁷ In addition, and probably not coincidentally, in both decisions a majority of the court members had been appointed by populist leaders relying on nonconventional (ab)use of the judicial nomination procedure. These decisions belie Rawls’s concept of the “original position,”⁶⁸ because the “veil of ignorance” may never fall but instead permanently shields those in positions of power. Although for Rawls the veil of ignorance is the “appropriate initial status quo,”⁶⁹ it turns out to be purely hypothetical, especially where the constitution as the fundamental agreement does not regulate reproductive matters.

Although populists differ in their attitudes to abortion, in their rhetoric they all tend to equate the good of the nation with the good of the family. This tactic has allowed right-wing populists to effectively dismantle the public-private divide and violently invade the private sphere with their doctrines and dogmas.⁷⁰ They have furthermore made us keenly aware of the weakness of negative constitutionalism in which governments can be held to account for unjustified limitations on freedoms but not for failing to enable the realization of rights especially in the private sphere.

While the importance of protecting the individual from state interference must not be overlooked, it is equally important for the state to take active measures to fill the void of “individual autonomy.”⁷¹ This involves creating conditions in which negative freedom can be achieved—for example, through publicly accessible education, information, and services. Accordingly, an active state must not only ensure access to remedies in the event of rights violations, but also create the societal conditions that allow equality and autonomy to be achieved in horizontal relationships.

It is true that almost all of the world’s constitutions recognize that the family is the foundation of society; however, the time has just come to break the logical nexus between the protection of the family, from which the nation grows, and the compulsion to bear children. Likewise, the time has come to end the state’s passivity toward various forms of violence against women and domestic violence.⁷² The recognition of the “right not to be left alone,” alongside the right to be left alone, becomes all the more urgent in times of global crises. Thus, both rights need to be viewed not as competing, but as complementary elements of negative and positive constitutionalism that exist in parallel.

The vision of an active state presupposes the existence of a positive obligation on the state to improve the socioeconomic situation of women as well as their position in private and family relationships. Fulfillment of this obligation includes providing women with adequate and meaningful access to health care, including abortion care.⁷³ In this view, access to abortion must therefore be considered a right, the protection of which falls within the positive obligations incumbent on states, and understood as a safety valve necessary in case private relations fail.⁷⁴

This Reflection is part of my research project “Women as Subjects of Constitutional Rights in Central and Eastern Europe,” funded by the National Science Center in Poland (UMO-2021/41/B/HS5/01421). While more progressive jurisprudence speaks of reproductive rights in gender-neutral terms, this Reflection adopts a women-centric optic. I am grateful to Sabrina Rewald for her comments on the first draft.

Footnotes