Europe: The Decline of the “Right” to Abortion

To date, a third of European states still prohibit abortion on demand, but this proportion may increase. In recent years, the "right" to abortion has been increasingly questioned in Europe and the United States. The Spanish Bill is just one striking example, among others. Here is the current situation:

The Spanish Bill signed on the 20 December 2013 has been in the news a lot recently; it abolishes abortion on demand and replaces the logic of a unilateral "right" to abortion in favour of a bilateral “protection of the life of the unborn child and the rights of the pregnant woman" as indicated in the title of the Bill. This Bill shocked Western Europe; perhaps that was its intention, to break the totem of an allegedly sacred right and provoke debate. The Spanish Minister for Justice, Alberto Ruiz Gallardon, indicates that he is "confident that this initiative will be followed in the parliaments of other European nations"[1]This belief does not seem unrealistic, indeed, in recent years, a growing number of European and American States reopened the abortion debate and revised their laws in a more restrictive direction. They consider abortion more as a social problem than as a right or individual liberty. In general, these laws aim to reduce the legal time limit for abortion in order to better protect the child and to avoid abortions which lack a sufficiently serious motive.

In Switzerland[2], a popular initiative referendum calling for the end of public funding of abortion on demand has been successfully introduced and has reopened the debate. Having been put to a vote on 9 February, a third of the electorate has expressed support for it. In the United Kingdom, the Parliament regularly discusses the reduction of the legal time limit for abortion, with the support of the current Prime Minister.[3] At issue: the revelation that each year sixty "foetuses" survive their late abortion and are left to die or killed by the medical team.[4] The Committee of Ministers of the Council of Europe has been called to address this matter.[5] Perhaps to avoid this situation, Norway[6], starting in January 2014, has introduced a total ban on abortion beyond 22 weeks, which is the threshold of viability outside the womb determined by the World Health Organisation.

In 2013, Ireland legislated on abortion, but despite European pressure, the legislature decided to maintain strong restrictions on abortion. This year is not only Spain, but also Lithuania could join Ireland and Poland among the nations which are more protective of prenatal life. Currently, its Parliament[7] intends to adopt legislation similar to Poland, its neighbouring nation. Supported by political parties of various political orientations, the Bill has already been approved by the parliamentary committee. The Parliament of Latvia had the previous year, reopened the case, in particular to require pregnant women to have a routine social interview prior to any abortion. In Poland, the question as to further limiting abortion frequently arises: in 2011 the total prohibition of abortion was only five votes short of being adopted by the Parliament.[8] The same year, Hungary[9] adopted a new Constitution which protects life from the moment of conception and has since implemented a policy in favour of welcoming life and adoption. This has achieved a reduction in the rate of abortion. Macedonia also adopted, on 10th June 2013, a new law strongly reinforcing the protection of life after 10 weeks.[10]  In Russia, 4 million abortions were performed each year at the end of the Soviet regime. This figure was reduced to 1.3 million, which is equal to the number of annual births[11], following an active policy of the Russian government. Since the law of 2011, abortion is no longer free, and conditions were imposed on it, including the viewing of an ultrasound, the father's consent, and a period of reflection.

As for Turkey[12], in May 2012 its government announced plans to reduce the legal time limit for abortion from ten to six or four weeks.  However, this was abandoned following intense European pressure. 

This trend is even more pronounced in the United States where only 12% of the population still believes that abortion is morally acceptable.[13] Between 2010 and 2013, American states have adopted 205 new restrictions on abortion, more than during the previous decade[14]. The change is as spectacular as it is profound.

This trend is also perceptible within the European institutions which have, until now, refused to create a European right to abortion. The Committee of Ministers of the Council of Europe refused to set out such a right in July 2013[15], while the European Commission regularly states that this question is not within its competence[16]. On 10th December 2013, the European Parliament rejected a resolution that wished to make abortion a fundamental right[17]. On the other hand, it has condemned sex-selective abortions and abortion policies such as exist in China. The Assembly[18] and the Commissioner for Human Rights[19] of the Council of Europe have done the same.

Already, on 7 October 2010, the Parliamentary Assembly of the Council of Europe adopted a resolution[20] vigorously affirming the right to conscientious objection, even though the original wording wanted to achieve the reverse and limit it.

As for the European Court of Human Rights, it has always refused to create a right to abortion which would be legally binding upon member States, even though there have been many applications to that effect. The Court recognises that the unborn child exists, without necessarily being a legal person, and that it belongs to “the human species” and deserves protection as such. The Court adds that if States decide to legalise abortion then they must consider the rights of the different actors: the woman, the child and society as a whole. Similarly, the Court of Justice of the European Union in Luxembourg has recognised that the human embryo deserves the protection of the law due to respect for human dignity as it is a stage in the developmental process of the human being.[21]

Both politically and legally, European law does not guarantee the right to an abortion, nor does international law which only guarantees the right to life for every human being and encourages States “to reduce the recourse to abortion”[22] which “must, as far as possible, be avoided”[23].

The European Citizens’ Initiative “One of Us” is a sign that this trend enjoys the support of civil society. It has obtained the support of two million people, a number which has not been equalled to this day. It asks the European Union, through a mechanism of participative democracy, to no longer finance abortion and destructive embryonic research. The Commission and the European Parliament will make a decision regarding this request within the next few months.

Today, this cultural evolution causes violent conflict because it goes against the dominant culture inherited from the 1960s. It is in this context of questioning of abortion that the will of the French government to normalise abortion and to make it an untouchable right can be understood. For this "right" to exist, it needs to be recognised as a true "freedom", however this may not be so in the case of a traumatic act. It also implies that the embryo and the human foetus can be considered negligible. Yet, the progress of science and consciousness working together, slowly but surely, has led to the better understanding of them. Certainly, it has led to the recognition of their humanity
Thus, the logic of the "right" to abortion falls under the pressure of two powerful reasons. Experience: the liberal laws have proved unsatisfactory and theory: the progress of science recognises that individual life starts well before birth.

Why so much resistance to this new trend? Perhaps because the decline of abortion is more demanding for society than its development was, because it requires us to be more responsible for our actions, to be more human and show more solidarity for the recognition and welcoming of life.

[1] « La loi espagnole sur l'avortement va s'étendre en Europe », 7sur7.be, 27 Décembre 2013.

[2] A popular initiative referendum on "Financing abortion is a private matter" was put to a vote on 9 February 2014.

[3] The Guardian, The abortion debate: the statistics, 8 October 2012.

[4] Daily Mail, 66 babies in a year left to die after NHS abortions that go wrong

[5] Written Question no. 655 to the Committee of ministers, 31 January 2014, Doc. 13416 : Le drame des avortements tardifs.

[6] Dagbladet.no, Abort etter uke 22 blir forbudt, 2 January 2014.

[7] « Lituanie : le Parlement va débattre de l'interdiction de l'avortement », LePoint.fr, 28 May 2013.

[8] http://www.astra.org.pl/repronews/83-polish-parliament-to-debate-two-draft-bills-regarding-access-to-abortion-today.html

[9] Corentin Léotard « Une remise en cause du droit à l’avortement en Hongrie ? » HU-lala, 18 April 2011.

[10] Planning Familial, « Le droit à l'avortement régresse en Macédoine », Le Courrier des Balkans
« Macédoine : le gouvernement s’attaque au droit à l’avortement ».

[11] Svetlana Smetanina, La Russie d’Aujourd’hui, « Les femmes russes, championnes de l’avortement », 29 March 2013. 

[12] «Turquie: une restriction de l'avortement?», Le Figaro, 30 May 2012.

[13] See the survey for the Huffington Post by Omnibus Poll in June 2013.

[14] Guttmacher Institute, More State Abortion Restrictions Were Enacted in 2011–2013 Than in the Entire Previous Decade, 2 January 2014; S. Klift, States passed 205 abortion restrictions in three years. That’s totally unprecedented, The Washington Post, 3 January 2014.

[15] Response by the Committee of Ministers of the Council of Europe, 3 July 2013 to the Written Question No. 633: “Does the European Convention on Human Rights set out a right to abortion?”

[16] See in particular the statement given by Commissioner Dali on 30 April 2012.

[17] Motion for a Resolution and Report no. 2013/2040(INI) on Sexual and Reproductive Health and Rights, 3 December 2013.

[18] PACE, Resolution 1829 (2011), 3 October 2011, Prenatal sex selection.

[19] Commissioner for Human Rights, Sex-selective abortions are discriminatory and should be banned, 15 January 2014.

[20] PACE, Resolution 1763 (2010), The right to conscientious objection in lawful medical care

[21] CJEU, Brüstle v. Greenpeace V, C-34/10. 18 October 2011.

[22] Programme of Action, § 8.25. Report of the International Conference on Population and Development, Cairo, 5-13 September 1994, United Nations, New York, 1995. Available at the following address: http://www.unfpa.org/webdav/site/global/shared/documents/publications/2004/icpd_fre.pdf.

[23] Parliamentary Assembly of the Council of Europe, Resolution 1607 of 16 April 2008.