Is there a risk of medical complications arising during a regulated abortion??
Around 50,000 women die each year and around 7 million suffer after-effects. The WHO documents 25 million abortions annually that are carried out without the minimal required medical supervision, by people without the necessary qualifications. 8 million of these are undertaken in the worst, dangerous and invasive conditions. This is why the WHO has published technical and strategic directives for state health care authorities across the world. Mortality stemming from risky abortions disproportionately affects women in Africa. The main complications are haemorrhaging and infections and injuries to the genital tract and internal organs.
Does restricting or prohibiting abortion reduce the number of abortions undertaken?
A lack of access to abortion leads women to resort to clandestine abortions. These use non-medicalised methods, in non-hygienic conditions that expose women to a serious risk of injury and death. In fact, almost all fatalities resulting from abortions carried out in dangerous conditions take place in countries where abortion is restricted or prohibited. The WHO asserts that removing restrictions on abortion reduces maternal mortality. In practice, deaths and serious after-effects from unsafe abortion could be avoided by providing access to legal abortion, where care can be quickly dispensed in case of complications, and in an environment that allows for sex education that includes directions on the effective use of contraception.
Does sex and relationships education have a positive impact on the sexual and reproductive rights of young people?
YES. Sex education in schools has a positive and lasting effect on the health and well-being of adolescent girls and boys. At a European level, studies show that the long-term introduction of national sex education programmes leads to a reduction in pregnancy and abortion among 15 to 24 year olds, as well as a reduction in the transmission of sexually transmitted disease (STDs) and HIV. By increasing young people’s confidence and reinforcing their authority, sex education gives them the means to make informed choices and to lead fulfilling sexual and emotional lives.
Can we talk about a RIGHT to abortion for all women?
YES. The WHO, a UN body, defines sexual and reproductive rights for all couples and individuals that allow them to decide freely and responsibly on the number and spacing of any children they may want. This supposes that all individuals can take decisions on reproduction without being subject to discrimination, coercion or domestic or social violence. Abortion and family planning, according to the WHO, are therefore components of sexual and reproductive rights, all of which fall within the wider framework of the right to health.
As regards abortion proper, since the 1990s, UN human rights committees and agencies, as well as regional and European bodies, have made numerous recommendations calling on states to legislate for and guarantee all women access to safe abortion within reasonable gestational limits, and without legal sanction or restriction. These committees and bodies regularly issue reports condemning certain states who defy these recommendations. However, there is no mandated, supranational mechanism to compel these states to amend their legislation, or to impose penalties where a state fails to respect these recommendations.
As for the 28 EU member states, neither the European Convention on Human Rights, nor the European directives and rules establish a right to abortion that could be brought before a European judicial body such as the European Court of Justice or the European Court of Human Rights. In fact, sexuality and reproduction are governed by the principle of subsidiarity, and therefore fall under the competence of each of the 28 member states. However, the right to health care is enshrined in European law, in particular in the Charter of Fundamental Rights. Furthermore, protecting and improving citizens’ health is the responsibility of the EU, in conjunction with action taken by member states. Finally, under the new European Consensus on Development, member states have declared themselves in favour of protecting and promoting women’s sexual and reproductive rights, including the right to access family planning services and sex education, particularly as a means of combatting maternal mortality across the world.
In conclusion, at both the international and European level, states have a duty to ensure that women can take decisions about their sexual and reproductive lives without fear of being subject to discrimination, coercive measures or acts of violence. To do this, beyond providing large amounts of information, states must guarantee women access to health services to prevent any risk of suffering, death or criminal liability. In recent years, there have been numerous position statements by the European Parliament on the issue, as well as recommendations by the Council of Europe. These together could put pressure on the European Union to enshrine a true right to abortion in EU law.
Does the European Court of Human Rights recognise a right to abortion in its jurisprudence?
YES AND NO. Abortion could feasibly create a clash for the Court between the rights of women and the rights of the foetus, and it generally focuses its judgements on the reasons why women want abortions rather than the concrete difficulties they are confronted with when they do. Nonetheless, the right to abortion has some recognition in the Court’s jurisprudence. This comes via the Court’s interpretation of two articles of the European Convention on Human Rights: Article 3 – No one shall be subjected to torture or to inhuman or degrading treatment or punishment, and Article 8 — the Right to respect for private and family life.
In effect, when a pregnant woman finds herself in exceptional circumstances such as where there is a threat to her health or where the foetus has an incurable illness, making it impossible for her to have an abortion could be interpreted as inhuman or degrading treatment, or as a violation of the right to a private life.
There are three judgements on women who sought abortions in Poland and Ireland as a result of a pregnancy that posed a serious risk to their health or the health of the foetus: Tysiac v. Poland (20 March 2007); A, B and C v. Ireland (16 December 2010) and R.R. v. Poland (28 November 2011). In these cases, the Court found that because the states in question recognised abortion, even in a very restrictive sense, they had an obligation not to limit women’s access to an effective intervention.
In the three cases, the Court found that the women’s situation had to be approached from the angle of a positive obligation on the State to have in place an effective and accessible procedure to enable women to ascertain whether or not they had a right to an abortion of such seriously problematic pregnancies. The Court found in favour of the complainant women.
Is there a right to life “from the moment of conception”?
NO. The historical negotiations over Article 3 on the “Right to Life” that is enshrined in the Universal Declaration of Human Rights explicitly assumed that fundamental rights begin at birth and that they protect people and individuals. Other international and regional treaties on human rights, composed or interpreted following the universal declaration, clearly reject the idea of human rights being guaranteed from the moment of conception or before birth. This is evident in the work of the UN Committee on Human Rights on interpreting the “Right to Life”, and is protected in the International Convention on Civil and Political Rights. These international and regional instruments also recognise that a woman’s right to life and her other fundamental rights (the right to a private life, the right to health, the right to equal treatment and to non-discrimination) are undermined where restrictive laws on abortion are in place.
According to the European Court of Human Rights, nothing in the Convention opposes a state allowing women to have an abortion, including the right to life guaranteed by Article 2. The Court does not consider that this article can directly protect a foetus. In the case of Vo v. France (8 July 2004), the Court found that “in the circumstances examined to date by the Convention institutions – that is, in the various laws on abortion – the unborn child is not regarded as a “person” directly protected by Article 2 of the Convention and that if the unborn do have a “right” to “life”, it is implicitly limited by the mother’s rights and interests”.
Can a doctor refuse to perform an abortion?
YES AND NO. There is a distinction between so-called conscientious objection, recognised in Article 9 of the European Convention on Human Rights only in the context of the armed forces, and what is called a “conscience clause”. The term conscience clause is used in the case of health care, but in no way constitutes a right and is therefore not guaranteed in any enforceable text.
Neither the European Court of Human Rights nor the European Committee of Social Rights has enshrined the right to a conscience clause in health care provision. In two cases in which claimants alleged that there had been a violation of such a right — Pichon And Sajous v. France (2 October 2001) and the Federation of Catholic Family Associations of Europe v. Sweden (17 March 2015) – the Court and the Committee found that the right to refuse to carry out a procedure on the basis of a conscience clause was not guaranteed by the European Convention on Human Rights.
While recourse to a “conscience clause” for health care provision is not recognised by the judicial arm of the Council of Europe, international jurisdictions have judged that member states may extend such a right to their health care practitioners. The Court and the Committee up until now have not challenged national legislation that provides for such a right, including where it grants a right of refusal to the chief medical practitioner.
On the other hand, the consequences for a patient of a healthcare worker invoking a conscience clause have been subject to judgement, by both the European Court of Human Right and the European Committee of Social Rights. These two bodies found that a doctor exercising a right to a conscience clause could entail a violation of the patient’s right to a private life and to health. Thereby, where states enshrine a right to a conscience clause in domestic law, they are obliged to frame it in such a way that it does not undermine the basis of the state health system, the primary aim of which is not to ensure that doctors can fully exercise their freedom of conscience, but to treat patients.
In the case of Tysiac v. Poland (20 March 2007), the European Court of Human Rights found that “Once the legislature decides to allow abortion, it must not structure its legal framework in a way which would limit real possibilities to obtain it”. It found that the state had a positive obligation to put in place procedures to allow pregnant women to exercise their right to a legal abortion. Finally, it is worth recalling that where a conscience clause is provided for by state legislation, it remains an individual right which only the practitioner in question can claim. In no case can this clause be institutionalised. In other words, no medical clinic can restrict access to abortion by invoking a conscience clause, since it can only be used by an individual practitioner making a personal decision.