SCOTUS and Strasbourg: An Analysis of European Abortion Rights Post-Dobbs
By Aarya Chaudhary
When the landmark U.S. judgment was overturned in Dobbs v Jackson Women’s Health Organization,[1] the death of Roe v Wade[2] sparked outcry, with many condemning the U.S.’s regression towards restrictive abortion law. These criticisms have been voiced not only within the U.S., but also across Europe, which raises the question: how different is the European position on abortion rights from that of the U.S.?
U.S. v Europe: Not so Different?
Some criticise Strasbourg case-law, arguing that it offers little more protection than that available in post-Dobbs America.[3] While Dobbs does not directly ban abortion, it drastically weakens access by removing protection of the right to abortion at the constitutional level.
The controversial argument made by the Supreme Court of the United States (‘SCOTUS’) for upholding ‘the Constitution’s neutrality’[4] on abortion is arguably echoed throughout Strasbourg’s case-law. This is due to the wide margin of appreciation that Strasbourg grants in cases concerning abortion. For example, in A, B, and C v Ireland, given the ‘sensitivity of the moral and ethical issues raised by the question of abortion’, Ireland was granted a wide margin of appreciation and Applicants A and B’s rights under Article 8 of the European Convention on Human Rights (‘ECHR’) were therefore not violated by restrictive Irish abortion law.[5] This decision reflects the Court’s unwillingness to uphold a ‘constitutional ringfence’[6] protecting abortion rights in a manner which some view as worryingly similar to SCOTUS’s decision in Dobbs.
Furthermore, the same arguments supporting Strasbourg affording a wide margin of appreciation to Contracting States of the ECHR on matters concerning abortion are echoed in justifications for the decision in Dobbs. It was argued that allowing U.S. states to decide abortion issues is more directly democratic than when such rules are made at the federal level.[7] Similarly, Strasbourg’s primary justification for deferring to national legislation is to protect the democratic decisions of Contracting States. Are both SCOTUS and Strasbourg prioritizing democratic decision-making at the expense of abortion-rights protection?
Both courts have held that the U.S. Constitution and ECHR respectively remain neutral on abortion rights and do not safeguard abortion from the influence of democratic decisions. However, this parallel between the American and European position on abortion rights, though striking, does not give due regard to Strasbourg’s supranational nature.
Differentiating SCOTUS and Strasbourg
A reluctance to safeguard abortion rights from majoritarian political whim is concerning at the national level since it means that abortion rights can be unravelled by decisions fuelled by conservative views on abortion, as was recently seen in the U.S. However, at the international level, Strasbourg’s unwillingness to enforce a right to abortion acknowledges the Court’s limitations as a supranational body and ensures due deference to the democratically enacted legislation of States. This shows a refrain from enforcing a view on abortion which may not align with the values of a State, thus potentially impeding state sovereignty.
Therefore, while both SCOTUS and Strasbourg have adopted neutral positions on abortion, these neutralities are not equivalent. Strasbourg’s deference to national legislation is a corollary of its role as an international Court and ensures protection of the democratic decisions of States.
Furthermore, in differentiating between the American and European positions, we must also distinguish between SCOTUS’s act and Strasbourg’s omission. Strasbourg has omitted to recognise a right to abortion due to the limitations discussed. SCOTUS, on the other hand, is not governed by such limitations as Roe[8] protected the right to abortion for nearly 50 years. Dobbs[9] therefore marked an active choice to remove the right to abortion and thus constitutes a graver regression towards limited access to abortion.
Additionally, where States do have legislation permitting abortion, Strasbourg has enforced this law. For instance, in A, B, and C v Ireland, Strasbourg stated that once a State recognises a right, it must respect and fulfil it. The Court did not find rights violations of A and B because Irish law did not permit abortion on the grounds on which they sought one.[10] However, because C’s circumstances fell into the category of lawful abortion (due to risk to life of the mother), by failing to implement an accessible procedure, Ireland failed to comply with a positive obligation to protect C’s Article 8 rights.[11] This shows Strasbourg’s balance between deferring to States by refraining from enforcing a right to abortion, but ensuring that where national legislation does exist, that it is enforced.
While post-Dobbs American abortion law bears similarities to the European position, a direct comparison fails to account for SCOTUS’s and Strasbourg’s roles as national and international courts, respectively.
That being said, we should refrain from feeling too proud of the differences which set the European position on abortion law apart from the U.S. Some Contracting States have yet to protect a right to access an abortion, indicating that progress remains to be made. While abortion rights give rise to a wide margin of appreciation, Strasbourg maintains that this is ‘notwithstanding an evolutive interpretation of the Convention’.[12] A majority of States share a consensus towards allowing abortion,[13] which has grown in recent years, for instance, in 2018, Ireland repealed its legislation to allow abortion during the first trimester. This suggests that as attitudes towards abortion rights evolve, there may yet be scope for an interpretation of the Convention that protects access to abortion, moving Europe away from a U.S.-like constitutional neutrality on abortion.
[1] Dobbs v Jackson Women’s Health Organization 597 US ___ (2022).
[2] Roe v Wade 410 US 113 (1973).
[3] Fletcher K and K Szopa, ‘The Future of Abortion Rights under the European Convention on Human Rights in Light of Dobbs’ (UK Constitutional Law Association, 30 June 2022) <https://ukconstitutionallaw.org/2022/06/30/karolina-szopa-and-jamie-fletcher-the-future-of-abortion-rights-under-the-european-convention-on-human-rights-in-light-of-dobbs/> accessed 27 October 2022.
[4] Dobbs (n 2) (2) (Kavanaugh J).
[5] A, B, and C v Ireland ECHR 2010-VI.
[6] Fletcher and Szopa (n 3).
[7] P Maddock, Dobbs Decision: Whither Democracy? Democracy Withered? (United States Studies Centre, 21 July 2022) < https://www.ussc.edu.au/analysis/dobbs-decision-whither-democracy-democracy-withered> accessed 26 October 2022.
[8] Roe (n 1).
[9] Dobbs (n 2).
[10] A, B, and C (n 5).
[11] ibid.
[12] RR v Poland ECHR 2011-IV.
[13] ibid.