France’s Moves to Enshrine the Right to Abortion: An Analysis of European Case Law

On the 4th of March 2024, France became the first country to explicitly incorporate the right to abortion in their constitution. French lawmakers voted 780-72, and the overwhelming support for women’s right to abortion saw “a standing ovation in the parliament” after these results were announced.[1] This historic moment was first brought about after the US Supreme Court overturned landmark case of Roe v Wade, which made abortion legal across the country. After the Supreme Court’s decision was announced in June 2022, many conservative states introduced new abortion restrictions or bans, thus clamping down on women’s rights to abortion. This caused outrage around both the US and the world, and President Joe Biden commented on the significance of the change in the law by declaring that “the health and life of women in this nation [were] now at risk”.[2] 

Now, in a completely different direction, France has chosen to ensure that women’s right to have an abortion is protected and codified in the law. This is notable and consequential, because while some countries include reproductive rights in their constitutions, France is the first to explicitly name the right to abortion as a guaranteed right.[3] This decision has led to many different and extreme reactions. Although none of the big political parties in France has shown opposition to abortion rights,[4] many religious groups, anti-abortionists, and the Vatican has expressed disappointment and criticism towards the outcome of the vote. On the other hand, feminist groups and female politicians who have been lobbying for this rejoiced.  

Clearly, the right to abortion is a controversial issue, and while many people look at abortion from a moral perspective, what does the law think of it? In England & Wales, sections 58 and 59 of the Offences Against the Person Act 1861 notes that abortion is a crime, whether induced through drugs or instruments, and whether the pregnant woman does it to herself or someone else does it to a woman. However, the Abortion Act 1967, amended in 1990, provides that no such offence is committed if a pregnancy is terminated in accordance with the provisions of the 1967 Act, which outlines four situations in which abortion is legally permissible. This model of abortion legislation in England & Wales adopts a medical perspective and does not confer the right to abortion to a woman. Is this compatible with the Human Rights Act 1998? Would a woman be able to claim under Article 8 of the European Convention of Human Rights that the right to abortion falls within the ambit of the right to respect for her private and family life? The two issues to consider when evaluating this question is the interpretation of ‘private life’, and the balancing of the pregnant woman’s right to private life under Article 8 and the protection granted to the fetus’ right to life under Article 2.

Looking at cases which have involved this issue, it seems that while Strasbourg has consistently declared that ‘private life’ covers one’s physical and moral integrity, European case law has suggested that the right to terminate a pregnancy does not fall within that integrity – both the cases of Tysiac v Poland and ABC v Ireland found that if domestic authorities allowed for legal abortions, they had to ensure that getting an abortion would be accessible.[5] However, the courts refused to hold that Article 8 conferred the right to abortion to any woman in either case. This refusal to include the right to abortion in a woman’s Article 8 right to private and family life is seemingly addressed in Brüggemann v Germany, where the Commission held that that abortion cannot be “solely a matter of the private life of the mother”.[6]

Evidently, the European court has a strong stance on the scope of Article 8 and whether the right to abortion should be protected and enshrined. However, seeing how France has taken a step forward in ensuring women’s rights in this aspect are guaranteed, it is possible that Strasbourg could start to adopt a different perspective on a woman’s right to private and family life and what it should encompass.

[1] https://www.bbc.co.uk/news/world-europe-68471568

[2] https://www.theguardian.com/us-news/2022/jun/24/roe-v-wade-decision-reaction-republicans-democrats

[3] https://www.bbc.co.uk/news/world-europe-68471568

[4] https://www.ft.com/content/753249b7-0d9e-4203-85f5-1b5d3b6c4c31

[5] (2007) Application no. 5410/03; [2010] ECHR 2032

[6] (1981)