The European Parliament has passed a Resolution calling for a ‘right to abortion’ to be included in the EU’s Charter of Fundamental Rights. The Resolution was supported primarily by representatives of the left-wing and far-left factions, but also by the liberals.
From a moral point of view, the declaration of intent to exclude an entire category of human beings, namely unborn children, from the protection of human rights, whilst guaranteeing another category of human beings a ‘right’ to kill them with impunity, is an act of unparalleled wickedness and a sad sign of intellectual and moral decline, spearheaded by those politicians who introduce or approve such motions.
However, the question of the legal implications of such an addition to the Charter of Fundamental Rights is much more interesting.
It should be noted here that the Charter is primarily addressed to the EU and its institutions; it applies to Member States only when and insofar as they apply EU law or transpose it into their own legal systems. The protection gap that the Charter was intended to close arose from the fact that human rights applied to the Member States of the EU, all of which were parties to the European Convention on Human Rights, but not to the EU itself, which is still today not a party to the Convention. The EU would therefore theoretically have been in a position to issue regulations and directives that violated human rights, which the Member States would then have had to apply or implement. This problem was to be resolved by the Charter, but the aim was not to create a parallel structure to the Convention on Human Rights, which would have led to competing jurisdictions between the ECtHR and the ECJ.
Article 51, paragraph 1, of the Charter therefore states: “The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application
thereof in accordance with their respective powers.”
Now, if a sentence were to be added to Article 3 of the Charter stating that “everyone has the right to bodily autonomy, to free, informed, full and universal access to sexual and reproductive health and rights, and to all related healthcare services without discrimination, including access to safe and legal abortion”, what impact would this have?
On closer inspection, it is immediately apparent that the proposed amendment is very convoluted. Abortion is only mentioned at the very end, and it is placed in the context of ‘health services’, although this is not what it actually is. Abortion would only be a health service if it cured someone – but if the intention behind the procedure is to get rid of an unwanted child, this classification is inaccurate. Now, one could of course say that abortion is simply part of the ‘bodily autonomy’ mentioned at the very beginning of the proposed text, but even ‘physical autonomy’ cannot be generally understood as authorisation to commit acts of violence. And since the text does not state outright that ‘everyone has an (unrestricted) right to abortion’, but rather refers to a right to access to (safe and) legal abortion, it can also be interpreted restrictively to mean that one should have the right to access abortion if and to the extent that it is legal.
The problem, however, is that the EU, to which this postulate is primarily addressed, has no jurisdiction over the regulation of abortion. It therefore cannot order Member States to legalise abortion, and would not be able to do so even if this addition were actually included in the Charter of Fundamental Rights.
In those policy areas for which the EU is responsible, however, there will rarely, if ever, be an opportunity to enact any regulation concerning access to abortion.
Conversely, this means that when Member States regulate abortion (whether restrictively or permissively), they are not implementing EU law. The Charter of Fundamental Rights would therefore not apply to such national regulations at all.
Of course, it cannot be assumed that the MEPs who voted for this draft resolution were aware that they were merely producing hot air, a purely symbolic act. They are simply poor lawyers. It would almost be funny if the proposed amendment to the Charter were to come into effect and one could then see the concerned and angry faces when it turns out that Poland is still allowed to protect children with Down syndrome and that France is not obliged to allow abortion up to five minutes before birth.
However, it would be preferable if this nadir of legal incompetence and moral depravity, which represents a blot on the history of Europe, were to be consigned to oblivion as soon as possible. And it would be even better if, one day, a resolution were passed recognising the right to life of all human beings from the moment of conception.
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