The subject of abortion is under fire globally. In late October, before the US mid-term elections, Biden expressed that he would use his veto power should Republicans win and try to pass laws banning abortion nationwide. Closer to home, in Poland, limited access to abortion leads to pregnant people having to literally cross borders to get abortions. Abortion is also a hot topic in the Netherlands as doubt and uncertainty concerning the stability of both international and Dutch abortion laws seem to be increasing. In early October, a citizens’ initiative was launched urging the Dutch Parliament’s second chamber to remove abortion from the Penal Code. Martin Buijsen, professor of Health Law at Erasmus School of Law, addresses the issue from a legal perspective.
Anyone who opens the Dutch Penal Code and browses to Article 296 will find that illegal abortion is a criminal offence in the Netherlands. The article criminalises doctors who terminate a pregnancy unless they work in a licensed clinic or hospital and meet certain conditions. These conditions are listed in the Dutch Termination of Pregnancy Act. “It is a construction where doctors, if they observe the requirements, remain unpunished”, Buijsen says. So, under the law, there is no right to abortion. “But the access is just there, and it does not come with very many obstacles”, he adds.
The placement in the Penal Code may evoke the association that pregnant people seeking abortions are punishable. However, Article 296 only concerns doctors. “Under this Code, the pregnant person cannot be penalised”, Buijsen concludes. “It is purely about the doctors adhering to requirements related to quality and safety.” Buijsen notes that abortion laws are often misinterpreted in practice: “This was also the case with the [ed. now deleted] reflection period. The reflection period was thought to be for pregnant people. But when you look at the Explanatory Memorandum of the Termination of Pregnancy Act, you will see that the reflection period focused on the doctor.” The placement of abortion regulations in the Penal Code ensures that the doctor must act with a high degree of care and specialisation. Failure to do so constitutes illegal abortion. Thus, pregnant people can never be criminally prosecuted for an abortion.
The European law margin
Although the Dutch abortion legislation seems to be a given, this is not necessarily the case for the rest of Europe. In Poland, abortions can only be executed under stringent conditions, and Andorra has a complete ban on the procedure. This raises the question of whether the European Supreme Court can rule against it under the European Convention on Human Rights (ECHR). “That has to do with how rights are protected in the ECHR”, Buijsen points out: “Indeed, there is a kind of order of hierarchy in the rights protected.” Some rights may never be curtailed (such as the ban on slavery), while others may be violated in certain circumstances. But the right to Private Life (Article 8 ECHR) – which includes abortion – may be curtailed. The exact interpretation of the right to private life is not defined in the treaty text of the ECHR but is interpreted by the European Supreme Court. The Court has given ‘private life’ a broad meaning. “Among other things, it has been established that making decisions regarding pregnancy is an aspect of private life that falls under the protection of the right to respect for private life”, Buijsen illuminates.
“A total ban on abortion is a major invasion of privacy. Regulating it, or giving conditions for when it is allowed, is an intrusion to a much lesser extent”, Buijsen explains. How big such an infringement may be is not definite; “It is a topic on which there are a lot of differences of opinion in Europe: there is no European consensus. In that case, the Strasbourg Court states: ‘what matters is a wide margin of appreciation’. Minimal restriction is fine, but a lot of restriction probably also”, Buijsen explains.
Margin of appreciation
The so-called margin of appreciation doctrine shows the Strasbourg Court’s restraint regarding specific issues. The Court thus considers countries’ different views on, often principal, issues. The extent of this margin varies. An important factor here is the presence or absence of a European consensus. If there is no such consensus, the Court leaves more room for countries to make their own choices. If consensus is present, the Court may enforce more strictly. In the case of abortion, there is no such consensus at the moment, leaving European member states with relatively wide latitude in restricting the right to private life. However, Buijsen does not rule out such a growing consensus in the future. “If all countries were to have more or less the same liberal legislation on abortion and you have an odd one out that is strict in that area, you can assume that there is a small margin. Then this country is more likely to go too far in restricting rights.”
Poland’s abortion laws
Two years ago, the Polish Constitutional Court decided on an almost complete abortion ban. Exceptions are cases where the pregnancy poses a threat to life or health and in cases of incest or rape. With this curtailment, Poland has one of the strictest abortion laws in Europe. “What is unique about Polish history is that we have actually never seen a country go back on previous liberal legislation in this area”, Buijsen argues.
Yet this infringement on the right to private life is justified because of the wide margin currently upheld by the European Court. However, Polish legislation acts as a deterrent to doctors; the risk of being penalised makes them too afraid to be involved in the potentially illegal termination of a pregnancy. Buijsen argues that The Court can intervene in such cases: “If you have access to abortion under the law, but it is just a charade in practice, then the Court will say something about that.”
In Poland, pregnant people are allowed to cross the border to have an abortion abroad. After all, the Court considers it a disproportionate infringement to block access to abortion completely. How the Court rules on the absolute bans on abortion in Andorra and Liechtenstein, for example, is still unclear: “There have never been any cases on that”, Buijsen said.
Does Dutch abortion law falter?
But what about the Dutch abortion law; is it also in question? “No”, Buijsen argues, “that law is set in stone.” After all, controversial issues and laws, such as the abortion law, have a long history and have often come about with great difficulty. “As it stands, the law provides a high standard of care and poses few obstacles in practice. In addition, the law has now been evaluated twice. And twice the evaluations have concluded that the legislation generally works well”, Buijsen says. Therefore, according to Buijsen the probability of the law changing – in place, regulation and form – is small.