Bringing Ginsburg to Strasbourg : an analysis of abortion as a gender equality right under the European Court of Human Rights

Abstract

In June 2022, the Supreme Court of the United States overturned Roe v. Wade, the landmark decision that guaranteed women their constitutional right to abortion. One of the main reasons for this decision was its constitutional basis: the right to liberty, as embedded in the Due Process Clause of the United States Constitution, does not include a right to abortion according to the majority opinion. That the right to abortion was founded on a highly unstable constitutional basis, had been asserted by many feminist legal theorists in the 70s and 80s who argued that abortion is first and foremost a matter of gender equality, not a right to liberty. In Europe, the overturn of Roe v. Wade has created a counterreaction that seeks to anchor women’s right to choose in national and supranational legislation. An important actor in this endeavor is the European Court of Human Rights as the judicial body appointed to interpret the corner stone of European human rights law, the European Convention on Human Rights. As in Roe v. Wade, the European Court of Human Rights conceptualizes abortion as a right to respect for private life, but has not yet found a right to abortion embedded in Article 8. The alarming fragility of the liberty argument as a basis for the right to abortion, demonstrated by the overturn of Roe v. Wade, pleads for the European Court of Human Rights to consider a different basis for the right to abortion: the prohibition of gender-based discrimination under Article 14. This work asks the question of how the European Court of Human Rights could conceptualize abortion as a gender equality right under its jurisprudential framework on equality, gender and reproduction. The body of American feminist legal theory, consisting of the writings of Ruth Bader Ginsburg, Catherine MacKinnon and Reva Siegel, will be used to support the argument of abortion as a gender equality right. This work will then argue why and how the European Court of Human Rights already has the adequate jurisprudential framework with which to rule that anti-abortion laws and attitudes constitute gender-based discrimination under Article 14. To demonstrate what such a ruling would look like, this work will conclude by rewriting P. & S. v. Poland from a gender perspective, in which the Court would rule that Poland’s anti-abortion laws and attitudes violate women’s right to equality.