The European Parliament recently voted against an attempt to make abortion a ‘human right’ in the EU. So far, so reassuring. But the margin was narrow. And the debate exposed the growing hostility to freedom of conscience for medical practitioners, which the Committee on Women’s Rights and Gender Equality, which was behind the attempt, described as one of the key ‘barriers’ and ‘obstacles’ to the realisation of its campaign to enshrine abortion as a human right.
The Committee’s Report within which the resolution appears itself acknowledges that sexual and reproductive health is a competence of individual member states; only national governments, not the EU, have authority to formulate and implement policy on matters such as abortion. Similarly, various rulings of the European Court of Human Rights (ECHR) in Strasbourg have determined that Article 8 of the European human rights Convention, the right to a private and family life, does not provide a right to abortion. The most recent such ruling was made, for example, in A. B. C. v. Ireland in 2010, which explicitly stated that abortion law falls within member states’ margin of appreciation (§185).
Yet the Committee asked the European Parliament to consider a measure that would have no limits on gestational age, allowing for abortion up to the date of birth as a human right across the EU, instantly rendering futile any attempt to restrict it.
This was not just an attempt to override the autonomy of member states. It was a bid to change the way European law sees abortion.
The Court previously noted in VO v. France in 2004 that the issue of abortion ‘has always been determined by weighing up various, and sometimes conflicting, rights or freedoms claimed by a woman, a mother or a father in relation to one another or vis-à-vis an unborn child’ (§80) and that the unborn, while not ‘persons’ in the legal sense, ‘require protection in the name of human dignity’ (§86).
The Court rejects, in the other words, an idea of abortion as rooted in an absolute right to bodily autonomy, or that the unborn life is a mere object, rather than subject of the law. The Court instead sees the issue in the context of a complex network of maternal and social rights and responsibilities. In offering legal abortion, member states are required by the Court to take into account these competing interests and rights and to ensure an adequate balance is struck between them. As Gregor Puppinck of the European Centre for Law and Justice has put it, the Court ‘tolerates’ abortion, rather than endorsing it, and only ‘if it is justified by a proportionate motive protected by the Convention.’
And here is the key point. Abortion is tolerated in law in many European countries as a lesser evil or concession, and curtailed (not beyond a certain number of weeks, requiring doctors’ approval etc.). Even if, in practice, many of those restrictions are ignored, the law itself would like to see fewer abortions.
Human rights, on the other hand, are calls to extend access to universal human goods which are needed for human flourishing: life itself, nutrition, property, education, employment, healthcare and so on. The law wants to see more, not less, access to these goods.
The ‘gender equality’ lobby tries to get around this difficulty by claiming abortion to be a women’s health issue related to Millennium Development Goal 5, which seeks to overcome the disparity in standards of reproductive health between member states. But the dishonesty of this attempt is clear from the figures: there is no observable direct correlation between maternal mortality and access to abortion, and countries such as Ireland, Poland and Malta, which have highly restrictive abortion laws, fare far better in maternal health care international league tables than the UK and France, the two EU countries with the highest age-standardised abortion rate.
The most pressing ‘maternal health’ issues are, rather, the provision of antibiotics to tackle the growing problem of sepsis, and effective treatments for embolism and hypertensive disorders, two of the main causes of maternal death in the developed world. The other pressing need is for skilled birth attendance, which the UNFPA describes as ‘the single most critical intervention for ensuring safe motherhood’. If ever there were candidates for gender equality and mothers’ rights, it would be these; yet where is the vociferous campaign calling for them?
Understandably, a growing number of European doctors (including those in the UK) reject the Committee on Women’s Rights and Gender Equality’s view of abortion. Its draft report notes with undisguised alarm that in countries such as Poland, Ireland and Italy a significant proportion of gynaecologists and anaesthesiologists object to abortion on conscientious grounds. ‘There are cases reported from Slovakia, Hungary, Romania, Poland, Ireland and Italy where nearly 70 per cent of all gynecologists and 40 per cent of all anesthesiologists conscientiously object to providing abortion services,’ the Report notes, before going on to deplore this as an ‘abuse’ of conscientious objection which ‘clearly contradict[s] human rights standards and international medical standards.’
That’s a claim that would surprise jurists. The right to freedom of conscience is enshrined in Article 9 of the European Convention on Human Rights, with the conscience rights of medical practitioners in particular having been affirmed by the Council of Europe in 2010, when it stated that no medical practitioner can ‘be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion’.
For the report to describe these established rights as ‘barriers’ shows a worrying disregard for the importance of individual conscience within a democratic and pluralistic society. And it sets up a wholly false conflict between women’s rights and individual conscience. The right to conscientious objection in no way threatens women’s right to good healthcare — unless, of course, you start from the Committee’s contentious understanding of what constitutes ‘sexual and reproductive health’.
Originally used in the context of population control, the term ‘sexual and reproductive health’, is now typically a euphemism for abortion and contraception provision. Abortion advocates have taken advantage of the ambiguity surrounding the term to present abortion as a healthcare right, despite the lack of any justification for this view in EU law, in order to push for its wider provision on the international stage.
This understanding of ‘sexual and reproductive health’ first came to prominence at the 1994 International Conference on Population and Development in Cairo and the 1995 Fourth Conference on Women in Beijing.
The Holy See’s delegations to these Conferences criticised their respective Programmes of Action at the time for presenting sexuality as merely an individual, biological matter, rather than something with a social dimension; indeed, the Programmes scarcely mentioned couples, marriage, or the family. The Holy See also objected to reducing the discussion of abortion to the procedural and sanitary risks, ignoring the risks abortion presents to women’s dignity and wellbeing, and of course the most fundamental of human rights of the unborn child. The Holy See argued that by failing to consider the ethics of family planning methods, and taking an individualistic, autonomy-focused, approach to sexual relationships, the Conferences undermined their own commitment to protecting women from exploitation and harm.
Events of recent years, culminating in last week’s attempt to introduce a ‘right to abortion’, appear to have vindicated these criticisms. While the vote showed due regard to the competences of the EU, the rights of doctors, and the real needs of women, it was not by a particularly large margin.
And if we have learned anything, it is that the model of human relationships presented at Cairo and Beijing – one that views female fertility as something to be fought against rather than managed and understood, and which can be easily untethered from its unitive and procreative ends with no ramifications for the health and dignity of women – still persists in certain EU Committees.
The objection to the ‘right to abortion’ is not an objection to the emancipation of women. It is an objection to a culturally-specific view of sex and relationships that is presented as the only authentically pro-woman basis for policy, despite having consistently failed to secure genuine freedom and wellbeing for women. It is an objection to attempts by activists to claim what is deeply wrong — the ending of human life — as somehow a right to a universal human good.
And it is an objection to the way in which the struggle for ‘abortion rights’ has obscured, downplayed, and moved off the agenda what should be squarely on it: the genuine, still unfulfilled, right of women across the world to life, education, employment, sanitation, and proper healthcare — especially for expectant mothers.