In its reply to the ECI “My Voice, My Choice”, the European Commission has spent a considerable amount of paper and ink in order to demonstrate that abortion is “healthcare”, and that the European Social Fund (ESF+) can be used to fund abortions. But while that reasoning is lengthy, it mainly proves things that do not need to be proven, while it fails to adduce convincing arguments where they would have been necessary. Very conspicuously, while abundantly citing from documents that have little relevance to the matter, the Commission avoids citing the only extant legal definition of “healthcare” within the EU legal order, one that makes a clear link between “healthcare” and the purpose and intention of restoring someones health. This omission is probably not a mere oversight or coincidence, but deliberate: whatever is not supportive of the Commission’s point of view is simply left out, treated as if it didn’t exist.
But if abortion is not “healthcare”, then the use of ESF+ money to finance abortion is clearly illegal – with all the implications and consequences that this may lead to.
The Commission clearly tries to present its point of view as a necessity, derived from an “international context” (the reference to international commitments is avoided, as there are none) and an “EU Legal Framework and policy context”. We will analyse both further below. However, before doing so, we have to point out that the question whether abortion can (as the Commission claims) be funded through the ESF is to be answered on the basis of the applicable legislation, and that legislation very clearly does not appear to allow such funding. Policy contexts, by contrast, may be cited only to demonstrate that a particular policy might be desirable, i.e. as a rationale for proposing legislative changes, but it does not in and by itself constitute a legitimate basis for ascribing to an existing law any other sense than the one it actually has.
As the Commission is not proposing any changes, the reference to policy context is superfluous. What would have been needed is a convincing and impartial interpretation of the existing legal framework, that is neither partisan, nor visibly informed by what the Commission might find desirable.
The “international context”
We reproduce the Commission’s text verbatim, adding our commentary in bold.
The Beijing Declaration and Platform for Action emphasises the need to address unsafe abortions as a serious public health problem, which affects the poorest and youngest women in particular. [That Declaration is 30 years old; it is quite dated. It is the Declaration adopted at the text of a large conference but does not have the force of law. The statement that “unsafe abortions are a serious health problem” is tautological: by definition, if an abortion is ”unsafe”, it is because it carries health risks. Therefore, nobody would contest this statement, which does not, however, answer the question whether, and under which circumstances, abortion should be legal. Each abortion carries health risks (which is why there is actually no such thing as a “safe abortion”) – but while it may be a legitimate concern of the UN to make “legal” abortions safer, the Beijing Declaration cannot be quoted as an argument to legalize abortion. As pointed out above, where abortion is prohibited, it is in view of the insight that the unborn child is a human being that is worthy of protection.]
The 17 UN Sustainable Development Goals (SDGs) to be reached by 2030 include target 3.7 on ensuring universal access to sexual and reproductive healthcare services. [This may be so, but it does not follow therefrom that abortion is a “healthcare service”.]
The UN Convention on the Elimination of All Forms of Discrimination Against Women (‘CEDAW’), to which all Member States are party, obliges all State Parties to take ‘all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning’ (Article 12). [That may be so – but it is unclear, and the Commission does not explain, how this is relevant to the subject matter of its reply to MVMC. Nature has ordained that there are differences between man and women – but these natural differences, in particular the fact that women can get pregnant and give birth whereas men cannot, are not the kind of “discriminations” that this Convention prohibits. A ban on abortion would be discriminatory if only female children were allowed to be aborted. Likewise, giving only men, but not women, access to healthcare would be discriminatory. If anything, then it is the legalization of abortion that could be qualified as discriminatory, because it places the so-called “choice” in the hands of women alone, whereas men are often reduced to the role of helpless witnesses when their children are being aborted.]
The UN Convention on the Rights of Persons with Disabilities (‘CRPD’), to which all Member States and the EU are party, emphasises the right of persons with disabilities to enjoy the highest attainable standard of health without discrimination, including access to health services that are gender sensitive. Persons with disabilities should have access to the same range, quality and standard of free or affordable healthcare and programmes as provided to others, including in the area of sexual and reproductive health. [Again this may be so, but the relevance of this reference remains unclear. Certainly the reference provides no proof that abortion is “healthcare”, nor does the Commission adduce any argument that the topic of its Communication is of any particular relevance to persons with disabilities. If the Commission were truly concerned about people with disabilities, it should hail the Polish Constitutional Court’s decision that an impairment of the fetus (such as Down syndrome) is not a justification for depriving it of the legal protection that other children enjoy.]
The World Health Organization’s (WHO) ‘Abortion care guideline’, aims to provide a comprehensive, evidence-based framework of recommendations and best practices. The guideline emphasises that quality abortion care must be ‘effective, efficient, accessible, acceptable/patient centred, equitable and safe’. Accessibility encompasses timely, affordable and geographically reachable services, delivered in a setting where skills and resources are appropriate to medical need. [These guideline does not have the force of law. If it “aims to provide a framework of best practices”, it does not necessarily follow that it does. In any case, such guidelines do not provide any evidence that the ESF+, which has the purpose of helping Member States in addressing the most urgent needs of people living in poverty, can be used to finance medical interventions that are morally questionable and have, even when they are legal, only the character of “elective” treatments.]
The EU legal framework
We reproduce the Commission’s text verbatim, adding our commentary in bold.
The obligation to ensure a high level of human health protection when drawing up and implementing all EU policies and activities is referred to in Articles 9 and 168 TFEU. Article 168 lays down the EU’s competences in the area of public health. Article 168(5), in particular, gives the EU the power to adopt incentive measures designed to protect and improve human health. However, any support must comply with the limitations in Article 168(7) TFEU: EU action must respect Member States’ responsibilities for drawing up their own health policy and for organisation and delivery of health services and medical care. This includes managing health services and medical care and the allocation of the resources assigned to them. [This part is correct insofar as it describes the EU’s competence in the field of public health. It is deficient in that it fails to place the MVMC initiative in the context where it actually belongs, i.e. criminal law. See above.]
Against this background, it should be noted that a Member State’s decision on whether or not to legalise abortion, and under which conditions, falls fully within its freedom to organise its healthcare and therefore within the areas that remain the responsibility of Member States as set out in Article 168(7) TFEU. [This is again correct, but not complete. EU action facilitating access to abortion would interfere not only with Member States’ policies on health, but also with their policy choices in the area of criminal justice.] This is why EU action that would impact a Member State’s decision on whether and under which conditions to allow abortion is hence excluded. The EU competence pursuant to Article 168(5) TFEU, to provide financial support for healthcare services, encompasses sexual and reproductive healthcare services that are legal in a Member State, including services relating to legal abortions. However, such financial support must also respect the division of competences set out in Article 168(7) TFEU. Therefore, such support cannot aim for or lead to a situation where EU financing would directly or indirectly undermine a Member State’s regulatory and/or bioethical choices on abortion.
Article 153 TFEU empowers the EU to support and complement Member States’ activities in various social policy areas, including social security and the integration of marginalised groups. [That may be so – but does it empower the EU to fund abortions, in particular when they serve no healthcare purpose? Would that supportive competence not rather mandate the EU to provide material support, such as housing and food, for families or single mothers?]
Articles 174-175 TFEU commit the EU to promoting economic, social and territorial cohesion. [Not clear how this is relevant in the given context.]
The Court of Justice of the European Union (CJEU) has held that the TFEU provisions on the freedom to provide services include the freedom for recipients of healthcare, including people in need of medical treatment. [This sentence is confused and it is unclear what the Commission wants to say with it. The freedom of service providers includes in principle the freedom to offer their services EU-wide – subject, however, to the conditions that these services are legal in the country where they are offered. (Thus, if abortions are legal in Sweden but illegal in Poland, the Swedish abortionist cannot simply travel to Poland and perform abortions). On the other hand, if what the Commission is trying to say is thatpeople in need of healthcare are free to travel to another Member State in order to receive treatment there, this statement is correct for healthcare – but not necessarily for abortion. First of all, it should be noted that not many medical treatments are ethically controversial the way abortion is, and secondly it des not follow from this statement that abortion actually qualifies as “healthcare”. With bans or restrictions on abortion, states usually pursue the legitimate objective of protecting human life, and it would be open to them to pursue that objective through an extra-territorial application of their penal laws (such as under Art. 113 of the French Code penal).]
With regard to medical termination of pregnancy carried out in line with the law of the country where it takes place, the CJEU has found that it ‘constitutes a service within the meaning of Article 60 of the EEC Treaty’ (now Article 57 TFEU). This means that women who travel to another Member State to receive abortion care are exercising their freedom to receive services under the TFEU. [That is right, but neither does this diminish the right of a Member State to define the scope of their criminal laws (see above), nor does this CJEU decision define abortion as a “healthcare” for the purposes of the ESF Regulation.
Without any doubt, abortion can be a “service” in the very same sense as prostitution, or in the same sense in which a CD with pornographic images can be a “good”. But the point that the Commission needs to prove is that abortion qualifies as “healthcare” and may thus be financed under the ESF+. The referenced CJEU decision does not adduce that proof.]
Article 35 of the Charter of Fundamental Rights provides, among other things, that everyone has the right to benefit from medical treatment under the conditions laid down by national law and practices [Again, it does not follow from this that abortion is “healthcare” eligible for funding under ESF+], and that a high level of human health protection must be ensured when drawing up and implementing all the EU’s policies and activities [Not clear what the “EU policy or activity” is supposed to be in this case.]
Regulation (EU) 2021/1057 establishes the European Social Fund Plus (‘ESF+’), a key instrument of the EU that aims, among other things, to improve economic and social cohesion across Member States. Its overall objective is to support Member States and regions to achieve, among other things, high levels of employment, fair social protection and inclusive and cohesive societies, aiming to deliver on the principles set out in the European Pillar of Social Rights. It promotes social inclusion by combating discrimination and tackling inequalities. It involves initiatives aiming to promote equal and timely access to quality, sustainable and affordable services, including access to healthcare. [All this is correct, but it shows that “healthcare” is by far not the primary focus of the ESF+, but one (subordinate) objective among many. Even more importantly, it does not follow from any of this that the “healthcare” that the ESF+ is promoting includes abortion.]
The ESF+ ‘should also be used to enhance timely and equal access to affordable, sustainable and high-quality services that promote … person-centred care such as healthcare’ (as set out in recital 18 of the ESF+ Regulation. Moreover, ‘due to the importance of access to healthcare, the ESF+ should ensure synergies and complementarities with the EU4Health Programme … and the scope of the ESF+ should include access to healthcare for people in vulnerable situations’ (as set out in its recital 21). [Again, while these quotations demonstrate as proof that the ESF+ can be used to fund “healthcare” – a point disputed by no one -, they do not adduce any proof that the deliberate killing of healthy children in a healthy mother’s womb is part of that “healthcare”. But that is the disputed point, the one that the Commission needs to prove!]
As a result, one of the specific objectives of the ESF+, set out in Article 4(1)(k), is: ‘enhancing equal and timely access to quality, sustainable and affordable services, including … person- centred care including healthcare; modernising social protection systems, including promoting access to social protection, with a particular focus on children and disadvantaged groups; improving accessibility including for persons with disabilities, effectiveness and resilience of healthcare systems and long-term care services’.
Therefore, the ESF+ can support initiatives, selected at national level, that aim to ensure and enhance equal and timely access to healthcare services. This can include access by persons in vulnerable positions. These efforts are part of a broader strategy to enhance social cohesion and improve the overall quality of life for everyone living in the EU. [We are at the end of this section. If the task was to argue that ESF+ can be used access to healthcare, it would have sufficed to point to Article 4(1)(k) on the ESF+ Regulation. But if the task was to demonstrate that that “healthcare” may include abortion, the Commission has so far failed to adduce any convincing argument, let alone proof.]
We may safely assume that if there were any compelling argument that the term “healthcare” in Article 4(1)(k) of the ESF+ Regulation captures the deliberate killing of a healthy child inside a healthy mother’s womb, the Commission would have adduced that argument. But the Commission has not adduced any such arguments, which leads us to conclude that by the best of wills no such argument is available.
What is more, it is highly significant that the Commission, in its otherwise rather verbose document, fails to make any mention of the only existing definition of “healthcare” in EU law, the one in Article 3(a) of Directive 2011/24/EU, which links the notion of “healthcare” to the intention and purpose of “assessing, maintaining or restoring the state of health” of the persons to whom it is provided. This omission is so astonishing that one can hardly believe it to be the result of mere negligence; instead, it seems rather likely that it was deliberate, in order to avoid the (probably unwelcome) conclusion that abortion is not “healthcare”. One might object that 3(a) of Directive 2011/24/EU defines “healthcare” only “for the purposes of this Directive”, but that purpose being the regulation of patients’ rights in cross-border healthcare, and considering that the Commission places its entire response to MVMC precisely in that context of cross-border health care, it still remains unbelievable that it fails to acknowledge and quote that definition.
This is not a sound and trustworthy legal analysis.
The Policy context
With “policy context”, the Commission means its own policies and aims. At this point, the reasoning becomes entirely self-referential, leaving the domain of legal analysis behind and entering the sphere of the institution’s own policy agenda.
As above, we reproduce the Commission’s text verbatim, adding our commentary in bold.
The Commission’s Roadmap for Women’s Rights, endorsed in October 2025 by all Member States and by other EU institutions, includes, in its Declaration of Principles for a Gender-Equal Society, Principle 2: ‘The highest standard of health: every woman has a right to the highest attainable standards of physical and mental health’. Upholding and advancing this principle includes pursuing the objective of ‘protecting women’s health by supporting and complementing, in full respect of the Treaties, health action by the Member States regarding women’s access to sexual and reproductive health and rights’. [N.B.: the text that “all Member States have endorsed” ends here. What follows now has not been endorsed by all Member States.] The concept of sexual and reproductive health is generally understood as comprising a broad range of services that cover: (i) maternal health; (ii) family planning, including contraception; (iii) comprehensive sexuality education; (iv) prevention of sexually transmitted infections; (v) reproductive cancer and HIV; (vi) comprehensive abortion care; and (vii) infertility and fertility options [This is incorrect. Upon a neutral and unbiased reading, concept of “sexual and reproductive health” does not lend itself to that interpretation. Very obviously, the notion of health (whatever adjectives are added before or after) refers to a status of physical and/or mental well-being, and not to a (broad or narrow) “range of services”. What the Commission presents as the ‘generally accepted meaning of the term’ certainly does not correspond to common usage. The Commission seeks to prove the point by linking to a webpage of the OHCHR, yet if there were a reference to this in a document emanating from the OHCHR, this ultimately only would prove that the OHCHR would like the term to be understood in this way, but not that it is generally understood in this way. However, the website linked to in the footnote in the Commission document does not provide any such evidence for the meaning of the term ‘sexual and reproductive health’, which is why it is not even clear whether anyone uses the term in the way proposed by the Commission.]
The European Parliament held a debate on the MVMC initiative on 16 December 2025, during which the majority of the MEPs underlined the importance of the initiative’s objective to protect women’s access to healthcare. The related resolution also stresses that the initiative aims to create a safer EU that provides the same level of healthcare for everyone. [If the majority of the MEPs support the MVMC initiative, this is neither proof that the majority of the population does (the popular support for “One of Us” points in the opposite direction…), nor can such a majority legislate on a matter that lies outside the competences of the EU. Even in matters pertaining to the EU’s competences, legislative prcontocedures have to be followed. The EP vote referenced in the Communication does therefore not change the fact that, contrary to the Commission’s assertions, the ESF+cannot be used to fund abortions.]
The Joint Ministerial Declaration on the guarantee of sexual and reproductive health and rights, adopted under the Spanish Presidency on 28 September 2023, calls on the EU institutions and Member States, ‘according to their respective competences and taking into consideration national circumstances’, to ensure ‘access to safe and legal abortion and to post abortion care by removing barriers that hinder its exercise. Also adopt specific measures to ensure women’s and girl’s rights to access health services, to guarantee the provision of these services by the public health system and within reasonable geographical reach and to guarantee that the due recognition of individual’s conscience clause of medical staff does not hinder women’s and girl’s exercise of these rights’. At the time of adoption, the Declaration was signed by 16 Member States, with the signature being left ‘open to as many Member States that wish to join it’. [The Declaration has been signed by health ministers (not the governments!) of 16 out of 27 Member States, which is not really evidence of a broad consensus that the EU should be steered into the one or the other direction. Some Member States want to have liberal abortions, others not. But the matter falls in Member State’s competence, precisely to avoid that some Member States impose their policies on others.]
The ”policy context” that the Commission is presenting in its paper is extremely biased. A fair and objective description of this context would not solely point to voices supporting the legalisation of abortion, but also those opposing it. In particular, in order to avoid the impression of ideological bias, the Commission would have had to acknowledge the fact that of all the ECIs carried out until today, it was the pro-life ECI “One of Us” that carried the by far greatest number of statements of support, more than 1,7 million, which very significantly exceeds the 1,1 million signatures collected by MVMC.
“One of Us” petitioned for a number of amendments to EU legislation in order to ensure that EU funds cannot be spent on any activity that involves or presupposes the destruction of human embryos. This demand, in total opposition to the demands that MVMC has brough forward, is the biggest request for a concrete legal act to be adopted that any group of EU citizens has ever brought to attention of the EU institutions. And the commission simply omits to mention it.
This could provide an explanation for the declining popularity of the EU and its institutions among the wider population.
one-of-us.org 