The right to abortion has been recognised in the USA since 1973, following the Supreme Court decision of Roe v Wade. The decision was seven judges to two, so was a clear majority. Despite this it is still a very controversial decision that is continually facing attack, even now on its 30th anniversary. In this case the Supreme Court held that it was unconstitutional to deprive the woman of a right to an abortion in the first trimester of pregnancy, in most instances in the second trimester and for some reasons in the third trimester.The decision in this case was based on the Constitutional right to Privacy implied by Amendment 14 of the US Constitution.
The Court made it clear that their decision as to the right to privacy only extended to privacy in the sense of personal sovereignty. 1 This is important because if the argument that because of privacy abortion is not the State’s business, the result could have been extended, in manners that even the pro-choice lobby would not have liked.A fuller privacy would have suggested that sex in all its forms and results was private, the State then would not be able to provide protection for women from being raped or mauled in private environments. A further extension of this would be that State funding for pregnancy could be removed, as this right of privacy would remove State involvement for health care during pregnancy. As a result it is important that the Supreme Court made this definition and since funding for pregnancy health care has not been affected, the problem of funding for abortions may be able to be challenged in the future.In more detail the Supreme Court ruled that there could be no State restrictions on abortion for the first trimester.
This meant that abortion was now available on demand, which is possibly the most controversial part of this decision. This finding meant that 49 States had unconstitutional legislation and had to change their abortion laws, only New York State had pre-existing abortion laws in line with the decision. 2 The Supreme Court then went on to say that in the second trimester individual State restrictions could be placed on abortion but not when an abortion is needed for the protection of woman’s health.More power was given to the States for the third trimester, where regulation is permitted for everything except where the life of the mother is at risk from the pregnancy. 3 On the other side of the world the European Convention on Human Rights has taken another approach. As human rights is the issue here the human rights of those involved needs to be examined.
There is certainly no direct Convention right to abortion but there are other rights in the Convention which need to be examined, which may give rise to an implied right.The pregnant woman has a right to life under article 2 and a right to respect for privacy and private life under article 8. The foetus on the other hand may have a right to life under article 2 but only if they can be considered a person. There have been four major cases in the European Court of Human Rights.
The first is the Open Door and Dublin Well Woman v Ireland in 1992, Paton v UK in 1980, Boso v Italy in 2002 and Takrczyk v Poland also in 2002.Dublin Well Woman case was mainly concerned with the right to access information on abortion in Ireland, where abortion was illegal. Therefore there is little article 2 or 8 debate in these cases. Similarly Takrczyk does not discuss article 2 or 8 in depth as it is more concerned with helping woman leave Poland to have abortions, then the right to abortions in Poland. In the more relevant cases the Court held that article 2 includes two fundamental aspects; the right to life and the prohibition of intentional killing.The court in Paton noted there was no definition of ‘everyone’ which is used in the right to life in article 2 but that the use of the word meant that it could only really apply post-natally, so did not include the unborn. In Boso the court was not this strict.
They held that a foetus could be considered to hold rights protected by article 2 but that a foetus would not be protected by article 2 in all circumstances. In this case they said that the Italian law requires that abortion is carried out for the protection of the health of the mother, so article 2 did not protect the foetus, despite the length of gestation.The court felt that since Italian law already nsured quite a fair balance between the protection of the foetus and the interests of the woman, that if the requirements for a voluntary termination were met there was no overriding article 2 protection of the foetus. The Court also followed the Commissions findings from Boso that in considering article 8 rights of both parents, the mother will be most essentially concerned with the pregnancy and so her rights need to be considered above all others.
Therefore a potential father has no article 8 rights.More directly applicable to the UK is the case of Paton. The European Court has been very diligent in avoiding answering the queries regarding article 2 clearly. In this case they accepted that due to the structure of the English law, with the Abortion Act 1967, as amended by The Human Fertilisation and Embryology Act 1990, abortion is not available on demand. The weakest provision is possibly s1(1)(a), where abortion is permitted to avoid risk of injury to the physical or mental health of the woman.The Court said, without acknowledging or denying the right to protection of the foetus under article 2, that an implied limitation to any article 2 right of the foetus would be the protection of the life and health of the pregnant woman, especially in early stages of the pregnancy. This seems to suggest that even if a foetus is granted full article 2 protection in the future, the English law on abortion will still be protected.
The provision that is easiest to satisfy, s1(1)(a) has a time limit, which prevents its use after 24 weeks and the other provisions have requirements that are more serious and harder to meet, despite lacking time periods. As a result other implied protections of the woman over the foetus would be likely to protect these provisions as well. So the European Convention on Human Rights is unlikely to interfere or lead to a change in Abortion law in the England.Of course the application to Northern Ireland may be affected, especially if the health of a woman is superior to the right to life of a foetus in the future, in this case the right to abortions in more extended circumstances then present may need to be recognised. If the same Human Rights approach was taken in the US, there would be problems with abortion on demand for the first trimester, but the Supreme Courts ruling on second and third trimester State restrictions would be able to stand, as the English law would.