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Is the Feministisation of the ECtHR’s Abortion-Related Jurisprudence a Realistic Expectation?

Putting the ECtHR’s Interpretation of the ‘Right to Abortion’ Under the Feminist Microscope

28.01.2022

Feminist legal theories have repeatedly highlighted the patriarchal bias in law and decision-making: Sexuality, biology and reproductivity have been parameters of persons’ positioning in the eyes of the law and are often used as bases for assumptions about their temperament and disposition, which eventually influence decision-makers’ interpretations of human rights provisions. This has been particularly reflected in jurisprudence relating to reproductive rights, and most of all the right to abortion.

This post embraces the aforementioned critiques and seeks to explore whether the adoption of an interpretation that meets these standards in the abortion-related jurisprudence of the European Court of Human Rights (‘ECtHR’) is a realistic expectation. To this end, the post will first indicate the main points of criticism that ECtHR’s abortion-related jurisprudence has received from feminist authors, to subsequently assess whether the rules on treaty interpretation can bridge a post-modern feminist approach to the right to abortion and the one adopted by the ECtHR so far. Ultimately, the post will point to the way through which the ‘feministisation’ of the interpretation of the right to abortion (i.e. the process through which the reading of human rights provisions meets the standards feminist critiques) could be accelerated.

The Main Shortcomings of the ECtHR’s Jurisprudence

Firstly, from a socialist feminism viewpoint, the ECtHR’s acknowledgement of ‘abortion travelling’ as a lawful alternative to States providing access to abortion (A, B and C v. Ireland, para. 130) is not satisfactory. Unlike the ECtHR, which was convinced that having the ability to travel abroad for the desired medical procedure was a sufficient safeguard for pregnant persons’ rights, a socialist feminist critique would certainly underline the discriminatory nature of this alternative, which is not accessible to all pregnant persons who may not have the socioeconomic means required (Avolio 24-28; Hoggart, 99).

Secondly, the ECtHR’s reasoning, whereby pregnant persons’ rights are weighed ‘against other competing rights and freedoms invoked including those of the unborn child’ (A, B and C v. Ireland, para 213) have been criticised as annihilating pregnant persons’ selfhood (Avolio, 11). The merit of this criticism, rooted in second-wave feminists’ critiques (Hendricks, 6-7), becomes even more evident in other passages of the ECtHR’s jurisprudence, where the father’s freedoms were added to this balancing exercise (Vo v. France, para 80; Boso v. Italy, para 1). Avolio underlined the paradox that is/was created in this context; the fetus’ – and even the father’s – interests come into this balancing exercise, only if domestic law and the State’s morality standards recognise these interests as an aspect the protection of morals (Avolio, 12). This non-interventionist approach has led pregnant persons’ access to abortion to depend entirely on domestic law. Against this background, the ECtHR has turned into a fourth-instance court, which assesses whether the domestic authorities have implemented the relevant domestic legislation correctly (P and S v. Poland, Csoma v Romania). In this sense, as Avolio has rightly noted, the ECtHR has engaged only in analyses of procedural abortion rights and has effectively maneuvered around addressing the broader landscape of gender relations underlying the deliberate violations by health care providers of even domestic laws (Avolio, 12-15).

But even the acknowledgement of procedural abortion rights seems biased. Indeed, the ECtHR has accepted that the minimum level of severity required for ill-treatment to fall within the scope of Article 3 of the European Convention on Human Rights (‘ECHR’) has been met in limited cases, where the relevant domestic provisions were disregarded by health care providers (P and S v. Poland; R and R v. Poland).  In these judgements, the applicants’ age as well as other parameters that are external to the pregnant person’s wish to receive an abortion (such as the applicant’s status as victim of a crime) were central (Avolio, 15). This approach could seem appealing to cultural feminists, who believe in feminine characteristics that should be valued (Cain, 835-836). However, the legalisation of abortion on grounds of whether the pregnancy was a result of crime, or even on grounds of the foetus’ abnormality, victimise pregnant persons, who are viewed as ‘blameless’ and, therefore, their will to receive an abortion should be excused and respected (Jaggar, 354). If, on the other hand, the pregnancy resulted from their personal sexual life choices, then they are perceived as blameworthy and deserve punishment (ibid). As post-modern feminist critiques underline, if the supporters of this approach were actually motivated by a belief that fetal life is sacrosanct and not by a will to control individuals’ sexual life, then it should not matter where the fetal life resulted from or whether the fetus, once born, would be disabled (ibid).

Is a Post-Modern Feminist Approach in the ECtHR’s Abortion-Related Jurisprudence a Realistic Expectation?

Cassandric though it may seem, the answer to this question is negative. A post-modern ECtHR abortion-related jurisprudence would allow the plethora of criticisms on hegemonic and hierarchy-reinscribing practices, elaborated in the context of differing feminist theories and outlined above, to be taken into consideration during ECHR’s interpretations (Williams, 162) and to lead to a more inclusive interpretative outcome. However, the boundaries of the rules on treaty interpretation do not seem particularly flexible in that regard.

Indeed, the systemic interpretation of the ECHR against the background of relevant pronouncements of the Human Rights Committee, the Committee on the Elimination of Discrimination Against Women and the Inter-American Commission on Human Rights can only lead to the acknowledgement of abortions’ lawfulness in cases of sexual assault, rape, incest, and where the pregnancy’s continuation endangers a woman’s mental and physical health. However, as was mentioned above, such an approach restricts the personal scope of the right to abortion and victimises thelimited number of its beneficiaries. Likewise, the ECHR Member States’ subsequent practice, however supportive to abortion on demand during the first 10 to 24 weeks of the pregnancy it has been, remains divergent. It can, therefore, not lead to a more inclusive interpretative approach; at least not without the artistic touch of evolutive interpretation. Such an approach, however, has already been explicitly rejected by the ECtHR (A, B and C v. Ireland, paras 233, 237).

When closing the door to evolutive interpretation, the Court was influenced by considerations of morality, precisely the ‘exact content of the requirements of morals’ in the country at stake (A, B and C v. Ireland, paras 232). Considering the close connection of the ECtHR’s evolutive interpretation and morality (see here and here), this conclusion comes as no surprise. In fact, this morality-influenced interpretative approach has even been viewed as compatible with the rules on treaty interpretation, which has been characterised as ‘intrinsically an evaluative task’. This characterisation was based on the human rights-safeguarding telos of human rights treaties and the role of human rights courts in the interpretative development of a moral conception of fundamental rights (Letsas, 540-541). The over-restrictive reading that this morality-influenced interpretation led to in the ECtHR’s abortion-related jurisprudence, however, highlights the significant role that feminist legal theories can play in the evolution of human rights law. Precisely, it evinces the contribution that feminist critiques can have on the feministisation of “the requirements of morals” at the domestic level, which will then inevitably feministise the ECtHR’s interpretative ethic and, therefore, its jurisprudential interpretative approach to the right to abortion.

Contrary to a proprio motu feminist interpretative outcome by the ECtHR itself, this consequent interpretative influence is a realistic expectation. Indeed, as feminist critiques have already influenced countries’ moral requirements and domestic laws, and as the ECtHR itself has evinced its interpretative influence by the developments of morality perceptions and domestic policies (Letsas, 528), the interdependence of the incorporation of feminist critiques by countries’ moral requirements and the feministisation of the right to abortion is clear. The question of how long the embracement of the feminist critiques by countries’ moral requirements will take, is surely the beginning of a different discussion. Until then, the scientific part of treaty interpretation cannot lead to a feminist interpretation of the right to abortion in the jurisprudence of the ECtHR.

Is There A Shortcut?

Surely! The feministisation of treaty interpretation itself. This could be the case, if during the consideration of subsequent state practice under Article 31(3)(a)-(b) of the Vienna Convention on the Law of Treaties, it is only the broader, feminist-friendly subsequent state practice of most ECHR Member States that is only taken into account, or if the consideration of morals in the context of ECHR’s evolutive or teleological interpretation is accepted only insofar as the morals taken into consideration embrace feminist critiques. This would of course require a feminist approach towards the interpretation – and subsequently the application – of the rules on treaty interpretation themselves. And in this context, the interpreters’ role in broadening their horizon towards critical (and more precisely feminist) approaches to international law is central. Indeed, ‘[i]nterpretation is a science, is an art, is a science’ (Merkouris, 16). And the role of the artist in the feministisation of this scientific art/artistic science is pivotal.

Conclusions

As the above analysis evinces, the ECtHR’s abortion-related jurisprudence abounds on grounds for feminist critiques. On the other hand, the boundaries of treaty interpretation evidently restrain the ECtHR’s evolutive interpretative outcomes. Against this background, the key to a more inclusive approach to the right to abortion in jurisprudence is the dissemination and promotion of feminism either in countries’ moral requirements or in interpreters’ mindsets.

 

The “Bofaxe” series appears as part of a collaboration between the IFHV and Völkerrechtsblog.

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Spyridoula (Sissy) Katsoni

Spyridoula Katsoni is Research Associate and PhD Candidate at Ruhr University Bochum’s Institute for International Law of Peace and Armed Conflict (IFHV).

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3 Kommentare
  1. Regarding the “paradox” that is mentioned in the article how even the father’s rights come into the balancing excercise, how the abortion access depends entirely on domestic law and how ECtHR has turned into a “fourth-instance court”, which assesses whether the domestic authorities have implemented the relevant domestic legislation correctlly. And how the ECtHR has engaged only in analyses of procedural abortion rights and has effectively “maneuvered” around addressing…

    To repeat, the Court has already established that there is no right to aborion, no right to practice it and no right to contibute with impunity to it being practiced abroad. Not to mention many rights of ther persons involved and legitimate interests of the States like for example to reduce the number of abortions and so on… So naturally, abortion access depends entirely on domestic law as it can’t be clamed based on the Convention.

    Against this background there’s nothing even remotely strange that the Court only examines whether the relevant domestic legislation is implemented correctly. It is how the Margin of Appreciation works and this is explained in more detail in a comment of mine in another blog post here.

    Actually what the court has “maneuvered” around addressing is the primary question of who humans(persons) are and at times in very creative ways like saying how “it is not desirable” to determine that. MoA is just a temporary fix untill that question is addressed by the Court. There are two possible outcomes:

    The Court can say that unborn child is not human(person). In this case nothing will change much as the above rights legitimate interests will stay the same.

    The Court can say that the unborn child is human(person). In this case only “double effect” principle will be allowed and that means an abortion ban.

    It is highly unlikely the Court will ever say that the unborn child is not a human(person). American convention of human rights is explicit and says that unborn children are persons from the moment of conception. Fact is, there is no other way to answer that question.

    Thus, addressing the issue gives no benefits to abortion proponents in furthering their agenda. While “maneuvering” around it just buys some time.

  2. Statement from your article how ECtHR has acknowledged that “abortion traveling” is a “lawful alternative” to States providing access to abortion. That’s not correct. See para. 123 which states how the Court “must examine the impugned legal position on abortion in Ireland in so far as it directly affected the applicants”. That’s what the court did as in this case since at the time abortion traveling was allowed in Ireland. All you can conclude from this judgement is that the law struck a fair balance… (para 241).

    As far as I know, modus ponens(affirming the antecendent) and modus tollens(denying the consequent) are valid forms of reasoning. While denying the antencendent(fallacy of the inverse) or affirming the consequent(fallacy of the converse) are not valid forms of reasoning. The reasoning in this article is precisely that, fallacy of the inverse.

    See Jerzy Tokarczyk v. Poland, there is no right even to contribute with impunity to abortion being practived abroad.

    Since the Court has already established that there is no right to undergo an abortion(Silva Monteiro Martins Ribeiro v. Portugal), nor a right to practive it(Jean-Jacques Amy v. Belgique). There is not much reason do discuss further other conclusions made from the above flawed reasoning.

  3. In one of my previous posts I mentioned four questions. Since Katsoni didn’t want to answer them I’ll give short answers to those questions.

    1. The Court excludes the unborn person from the scope of the Convention?
    The answeris no. The Court has never excluded the unborn child from the scope of the convention. This is explained in previous posts in detail.

    2. Access to abortion on demand can be claimed based on the Convention?
    It can’t. The Court was explicit on the fact that there is no right to abortion. Case law is quoted in my previous posts.

    3. The refusal to grant access to abortion on demand infringes a right guaranteed by the Convention?
    Same answer as to the previous question. Also, EVEN IF the Court would say that the unborn child is not a person, abortion would till not be a human right. The Court has already recognized that “pregnancy cannot be said to pertain uniquely to the sphere of private life”(Bruggemann & Scheuten v. Germany). In Boso v. Italy and X v. UK the Court has acknowledged that the “potential fathers” were victims of the abortion, but that the abortion was justified by medical indications. (This is an example of “double effect” principle). And how the proportionality test should have been different in case of abortion on demand.

    Also worth mentioning, legitimate interest of society to limit the number of abortions. (Odievre v. France).
    The interests of society in relation to the protection of morals. (Open Door & Dublin Well Woman v. Ireland).
    And many others.

    4. The practice of abortion on demand does not curtail any right and interest guaranteed by the Convention?
    As you can see from my previous answer, you cannot claim that even if the Court would say that unborn child is not a person. Other way around if the Court says the unborn child is a person, that means an immediate ban on abortion and only the principle of “double effect” would be applicable. For now it is “not desirable”(quoting the Court) for the Court to answer that question; everyone can judge that for themselves, just be careful not to be on the wrong side of history like some were in times of slavery. Fortunately slavary was abolished. Can you define who humans(persons) are in a way to exclude the unborn and not to exclude any of the born in the process? Good luck with that.

    I’ll write another post soon about Ireland and their legalization of abortion as it is a good example of how various legitimate interests mentioned come into play.

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