On Friday 24th June 2022, in Dobbs v Jackson Women’s Health Organization, the US Supreme Court (SCOTUS) overruled the right to an abortion nearly 50 years since it first declared it a constitutionally protected right. An outpour of protests and condemnation followed the release of the opinion, with many legal professionals, politicians and NGOs across Europe speaking out against the devastating consequences this decision will have on women’s and other pregnant people’s rights in the US. Pregnancy holds implications for women’s physical and social identity, with repercussions on the woman’s economic status, her chance for education, career and ability to pursue the life she chooses, not least to mention her physical health. In the opinion of this blog’s authors, a pivotal decision such as access to an abortion should be shielded from state interference.
This blog will demonstrate that despite this outcry of condemnation from within Europe, under current European Court of Human Rights (ECtHR) jurisprudence, the right to abortion is currently afforded very little legal protection beyond that afforded to women in the US post-Dobbs. Within this jurisprudence, a woman’s access to abortion is still almost entirely dependent on the winds of political opinion. If those winds were to change direction, the bodies of women in the UK and the rest of Europe could be subject to the severe restrictions facing women in many states in the US. Whilst this might seem presently improbable, Professor Litman has identified, in the United States, this political wind did not change overnight, it was the result of a “decades-long campaign… of ruthlessness” that Europe is not necessary immune from forever. Consequentially, understanding Dobbs is of significance for protecting women’s rights in Europe from the type of diversification currently unfolding in the US.
1: Impact of Dobbs on Abortion Access in the US
In Dobbs, the US Supreme Court declared that Roe v Wade was “egregiously wrong” [pg 6] and that the US Constitution does not contain a constitutional right to abortion. In his majority judgment, Justice Samuel Alito determined that the court in Roe erred in finding the existence of such a right [pg 45]. Alito concluded that the Constitution is silent on the issue of the right to access an abortion, and thus, the question of whether abortions should be permitted or prevented was not an issue for constitutional adjudication, but rather, an issue to be debated via the ordinary political process [pg 44]. Kavanaugh, in his concurrence, summarised this argument as one of constitutional neutrality, writing, “on the issue of abortion, the Constitution is neither pro-life nor pro-choice. The Constitution is neutral, and this Court likewise must be scrupulously neutral” [pg 68]. Dobbs, therefore, removed any distinct protection associated with affording access to abortion the status of constitutionally enforceable right.
Consequentially, in post-Dobbs America, access to abortion becomes a policy issue to be debated and adjusted at both federal and State levels through the ordinary democratic process dependent upon electoral political support. This argument of neutrality constructed by the Supreme Court’s majority is a mirage, however [Dissent, pg 20]. The result of Dobbs is that women have now lost autonomy over their own reproductive health choices and these reproductive choices are now subjected to the boundaries of what is deemed acceptable choices to the will of the majority. Put differently, a range of reproductive health choices may no longer be available to a woman even if it is what she chooses as being within her best interest. As the co-authored dissent of Breyer, Sotomayor and Kagan notes, “[a]s of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions. A State can thus transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare” [Dissent, pg 4]. When viewed through this light, and the loss of autonomy accounted for, the veneer of neutrality cannot obscure the consequences of Dobbs. Dobbs means that in America, the right of an individual women to control her own reproductive choices and decide whether to “bear a child, with all the life-transforming consequences that act involves” [Dissent, pg 4] is no longer her own but subject to the will of the general population.
So whilst Dobbs neither (a) directly bans abortion access or (b) offers constitutional protection to the unborn via the establishment of foetal personhood, it undeniably weakens abortion access by removing the constitutional ringfence that limited law-making. Post-Dobbs the federal and State governments have now been provided ‘carte blanche’ by the SCOTUS to create their own abortion laws. Diversification in the level of access to abortion has been swift with a majority of states reducing access. At least 13 of the 50 states have trigger laws, which came into effect at Dobbs’ announcement. The Guttmacher Institute predicts that at least 26 states seem certain or likely to introduce restrictions on access to abortion. It would seem likely that any future federal Republican Administration or controlled legislative chamber might also seek to limit abortion access. Going forward, access to abortion will be intermittent across America. Whether an individual will have access to abortion will depend upon their geographical location and women of lower socioeconomic class, or young and vulnerable individuals will be disproportionately impacted.
The ramifications of Dobbs may also lead to the erosion of other fundamental rights currently enjoyed by Americans. Justice Clarence Thomas’ concurring opinion encourages the court to reconsider other ‘substantive due process rights’ which owe their jurisprudential logic and precedential weight to Roe [Thomas Concurrence, pg 1-7]. If this line of reasoning is followed, Dobbs poses a threat to all unenumerated constitutional rights established through the Fourteenth Amendment, and risks making all individual privacy rights in America subject to the value judgements of the majority. Rights that could come under attack include amongst many others: the right to inter-racial marriage, the right to same sex marriage, the prohibition against anti-sodomy laws and the right to purchase contraception. This will result in a switch to a much thinner model of democracy in America whereby a large proportion of currently recognised constitutional rights will no longer be protected from majoritarian decision-making.
The next section of this blog post will demonstrate that Dobbs’ thin conception of democracy, which sees the majoritarian views of society trump a woman’s right to abortion access, already exists within European human rights law – due to the overexaggerated margin of appreciation afforded to the High Contracting Parties (HCP) in abortion cases – which is out of step with the margin in other areas of Article 8 jurisprudence. Once you see the doctrinal similarities between the Dobbs and the ECHR position, one must ask why such a visceral outcry has occurred about Dobbs but has not been sustained within the European human rights context. The answer proposed in the final section of this post is that the application of this legally similar rule in the American context exposes the fragility of such a wide margin of appreciation. Unlike in the European context, whereby thus far, only a small fraction of HCPs have diversified their laws, in America this has been widespread and instantaneous. It is important to note that one of these divergent HCPs is the United Kingdom, in relation to Northern Ireland. On this basis, Dobbs should now be used as a catalyst for abortion rights advocates in Europe to call for the ECtHR to reconsider its jurisprudence.
2: Similarities and Differences between Dobbs and the ECHR
Despite outrage from within Europe towards Dobbs, there is remarkable overlap between the jurisprudence created by the majority judgment and current ECHR jurisprudence. Evidence of this overlap can be seen in the amicus briefs filed in Dobbs by scholars of European human rights law. On the one hand, opponents of abortion access filed briefs using the ECHR jurisprudence as a model for the US Supreme Court to base their new ‘constitutionally neutral position’ upon. Whilst proponents of abortion access in their briefs sought to demonstrate that the Council of Europe (CoE) was in fact moving away from this position and that there is a strong probability that European jurisprudence may shift towards the level of legal protection previously offered in Roe. What did not seem contested though between amici, on both sides of the debate, was the notion that the ‘constitutional neutrality’ argument outlined in Section 1, which the Supreme Court have now adopted within Dobbs, is already at the centre of ECHR jurisprudence.
In 2010, in A, B and C v Ireland the ECtHR was petitioned to declare Ireland’s restrictive abortion laws a violation of the right to private and family life under Article 8 of the ECHR. At the time, Ireland only permitted abortion where there was a direct threat to the woman’s life. The complaint asserted that lack of access to abortion on the ground of health and well-being violated the respect for the women’s reproductive autonomy, making it incompatible with Article 8 of the Convention. The existing jurisprudence made it clear that the matter fell within the ambit of Article 8 but, in the context of pregnancy, the woman’s right to privacy is not absolute and must be weighed against the state’s interest in protecting the potential life [§ 199]. In addressing whether the restriction can be justified, the Court focused its investigation on whether the measure was “necessary in a democratic society”. In determining the appropriate margin of appreciation, the ECtHR highlighted that decisions relating to pregnancy form a particularly important facet of an individual’s existence and identity [§ 232], which usually warrants a narrow margin and more stringent standard of review. Under the established methodology, the existence of European consensus also narrows the margin and in the instant case, there was an overwhelmingly strong trend amongst HCPs in favour of a more liberal approach [§ 235]. These two decisive factors would ordinarily require Ireland to provide particularly weighty reasons for the interference with women’s rights.
Instead, the Court took “an unusual step” [Lady Hale, para 22] and awarded Ireland a wide margin. This surprising move was justified on the basis that “[t]here can be no doubt as to the acute sensitivity of the moral and ethical issues raised by the question of abortion or as to the importance of the public interest at stake” [§ 233]. The question of abortion indeed presents particularly complex meta-ethical questions. “When life begins” is an essentially contested concept, and no amount of legal, philosophical or medical research is likely to settle the debate. The Court pivoted its attention into the meta-legal question of “when does life begin?”, in lieu of the focus on the impairment caused to the woman’s right to reproductive autonomy. The Strasbourg Court showed a problematic level of deference to the moral opinions within the Respondent State, inconsistent with its jurisprudence on other rights that raised morally sensitive issues, such as the rights of same-sex couples and transgender peoples. The wide margin of appreciation led to the conclusion that no rights were violated, and in turn, Article 8 does not demand minimum access to abortion.
It is important to note that in A, B and C, the ECtHR did not hold that HCPs possess an unlimited margin of appreciation, and domestic courts such as the UK Supreme Court. In the Matter of an Application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) has (effectively) held that laws prohibiting abortions in cases of rape, incest and fatal foetal abnormality fall outside of this margin of appreciation. Nonetheless, there has yet to be a decision from the ECtHR to confirm this on a pan-CoE level. The jurisprudence of the ECHR only goes as far as to say that laws prohibiting abortion in cases whereby a woman’s life might be at risk would fall outside of the margin of appreciation. Consequentially, all other policy choices remain subject to the political winds within HCPs in a similar fashion to the US post-Dobbs.
Whilst this fragility has always existed within the ECHR due to A, B and C, it is only with the Dobbs judgment, and the immediate and restrictive responses of many of the more conservative States, that one can appreciate how, if political winds changed within Europe, women’s access to abortion might be dramatically curtailed. If one was to lay the legal principle of A, B and C next to Dobbs, one would have a difficult time (excluding the exception for protecting the life of the pregnant woman noted above) distinguishing the two jurisprudentially. Both the SCOTUS and ECtHR have held that their guiding documents, for different reasons, do not ‘ringfence’ abortion rights from the democratic majority and decentralise judgement on abortion access to their constituent parts. Some might question whether this comparison is worthwhile, considering A, B and C did not lead to the level of diversification in CoE that Dobbs has in America. However, this critique misses the point – jurisprudentially it could happen and it is not human rights law that is stopping it from happening.
3: Forthcoming ECHR Jurisprudence – Opportunity or Retrenchment
A trio of pending cases before the ECtHR present a renewed opportunity for the Court to recognise the right to abortion under Article 8. In 2019, Poland’s Constitutional Tribunal declared abortion performed on the ground of severe foetal abnormality incompatible with the Polish Constitution, which was concluded to encompass the protection of foetal life. Previously, over 90% of all abortions relied on this ground, and accordingly, the Tribunal’s ruling has had a significant impact on access to abortion in Poland. In K.B. and others v Poland, K.C. and others v Poland and A.L. –B. and others v Poland, the applicants claim to be potential victims of Article 8 and/or Article 3 violations. The applicants contend that the decision of the Polish Constitutional Tribunal has made them adapt their conduct with regards to starting a family because in the event of foetal abnormality, they would be forced to carry the pregnancy to term, even though their preference would be to terminate. These cases create both an opportunity and a danger for the advancement of abortion as a human right under the ECHR.
The opportunity is highlighted in The Brief of European Law Professors as Amici Curiae, cited in the Joint Dissent in Dobbs, which anticipates that this time around the ECtHR is likely to apply a narrower margin of appreciation. The logic behind such a prognosis is compelling, with further development of European consensus since A, B and C, and broader international trends in favour of more liberal abortion access. The concern about the lack of judicial independence in the composition of the Polish Constitutional Tribunal is also likely to be an important factor demanding a more rigorous standard of review. Following the three cases, it is expected that the right to abortion on the ground of health and well-being will be established under the ECHR.
The danger in these cases is that Dobbs provides those who wish to maintain the A, B and C margin of appreciation with evidence of a western liberal consensus on the issue. The anti-abortion groups in Europe are galvanised by the unfolding situation in the US, using it to reaffirm that abortion is not a human right. The SCOTUS’s deference empowers the argument that the ECtHR, as an international court, should also abstain from settling the right to abortion centrally. This line of reasoning would, however, disregard the “egregiously wrong” decision taken in Dobbs for reasons discussed above, and would encourage the ECtHR to repeat the same mistake. Rather than looking to Dobbs, the ECtHR should instead look to model the future jurisprudence on the basis of Roe and/or Casey. In such a model, the ECtHR would seek to narrow the margin of appreciation afforded to HCPs by more clearly ringfencing a period of pregnancy in which a woman has privacy to make her own reproductive health choices without any interference from the state.
Dobbs’ only influence on the ECtHR should be as a tool to reflect upon our own commitment to abortion access as a human right and the inadequacies of its current jurisprudence. The right to make a decision regarding the pregnancy should be reserved for the woman whose body it is, and should be shielded from unnecessary input of anybody other than the woman making the reproductive health choice. Reproductive health decisions should not exist purely on the basis of whether ‘good individuals’, supportive majorities, and pro-political winds prevail. As the controlling plurality in Planned Parenthood v Casey stated, “Liberty finds no refuge in a jurisprudence of doubt.” Whilst to some, A, B and C always raised doubt, hopefully Dobbs now exposes that doubt to all.
Karolina Szopa, Lecturer in Law at Bournemouth University, PhD candidate, University of Reading and University of Bristol. Karolina’s PhD is funded by the South, West and Wales Doctoral Training Partnership.
Jamie Fletcher, Lecturer in Law at Bournemouth University.
(Suggested citation: K. Szopa and J. Fletcher, ‘The Future of Abortion Rights under the European Convention on Human Rights in Light of Dobbs’, U.K. Const. L. Blog (30th June 2022) (available at https://ukconstitutionallaw.org/))