Prenatal Justice in Europe: 2022 in Review

by Kristina Artuković

—

From the standpoint of global prenatal justice, the fall of Roe is undoubtedly the most important event of 2022. In addition to dividing US citizenry like few things have (though not for the lack of trying), it resonated throughout the rest of the world, accelerating Europe’s political maneuvering when it comes to abortion.

Pushing for a right to abortion at the EU level

In the weeks following the leak of Alito’s draft, the likelihood that the US Supreme Court would rule that the Constitution does not confer a right to abortion — returning the issue to the American people — stood in palpable juxtaposition with the European Union’s agenda of pushing for a supranational pro-abortion legislation in the name of fundamental rights.

Two and a half weeks before SCOTUS actually delivered the decision on Dobbs, members of the European Parliament found it appropriate to vote for a non-binding resolution called Global threats to abortion rights: the possible overturn of abortion rights in the US by the Supreme Court. It called Alito’s draft “a roll-back in constitutional rights” and urged president Biden and the US government to secure access to “safe and legal” abortion and ensure “complete decriminalization of abortion.”

The resolution was predictably sprinkled with misleading and incorrect data, reinstating the two most common myths serving the legality of abortion: that abortion restrictions do not decrease abortion rates (they do), and that abortion restrictions jeopardize women’s health and lives (they don’t). In keeping with the “Matić Resolution” from 2021, the 2022 resolution attacked the right to medical conscientious objection to abortion. It also mentioned several cases of alleged “reproductive injustice” in pro-life European countries, adding an especially fabulous spin to the alarmist tone of the document. The call for more funding for pro-abortion NGOs worldwide was the cherry on top.

This direction is nothing new. Ever since the “Matić Resolution,” EU institutions have been constantly announcing new strategies for imposing pro-abortion legislation throughout the entirety of Europe: from Macron’s plans in January 2022 to enshrine the right to abortion into the European Charter of Human Rights, to the FEMM Committee’s project to create an EU Charter of Women’s Rights to secure unrestricted abortion all over the EU, which was announced late last year.

Such supranational strategies are unrealistic, as many of the proposed treaties would also require accord from the tiny minority of pro-life countries in the EU. Furthermore: when abortion is pushed as “healthcare,” under the EU treaties, the states may remain at liberty to sovereignly govern their public health policies; when, however, abortion is pushed as a “human rights issue,” it gets complicated by the fact that the International Covenant on Civil and Political Rights and the European Convention on Human Rights are neutral on the issue of abortion, quite contrary to the loaded interpretations from various human rights monitoring bodies. This leaves the signatories free to regulate the issue according to their vision of prenatal legal personhood. This may be explicitly stated in the constitution and/or secured via an interpretative declaration, as per ECLJ’s proposal.

Pressure from within pro-life countries

The aforementioned form of political abuse is regularly unleashed on EU’s pro-life countries like Poland and Malta, but several other countries often catch fire, too. This particularly pertains to Hungary, due to their pro-life constitution coexisting with an abortion-permissible law and because of the mandatory ultrasound prior to abortion that was introduced in Hungary in 2022. Croatia and Italy often get reprimanded, too, because of their high number of medical conscientious objectors to abortion.

However, the real action lies in creating political pressure from within these countries. (Remember the call for more funding of pro-abortion NGOs?) Just like in the US, this often takes the form of utilizing particularly gruesome individual cases allegedly caused by pro-life legislation. In 2022, there were two maternal death cases in Poland apparently suitable for this strategy. The links between maternal death cases and the recently introduced anti-eugenic legislation in Poland are, at best, inconclusive – but these cases have nonetheless been constantly popping up in the international media and various non-binding EU documents, like the aforementioned resolution. Tragic cases concerning Ukrainian refugees coming to Poland were also used to raise accusations towards the pro-life environment and to promote abortion on the grounds of rape (even though this has always been legal in Poland).

In addition, the international pro-choice lobby has been attempting to take Poland to the European Court of Human Rights (ECHR), with claims that women have been subjected to “torture” and “inhumane and degrading treatment” due to lacking the legal option to abort babies with disabilities. Luckily, in November 2022, one such application was deemed inadmissible by the ECHR. Hopefully the others will be, too.

In Croatia, the 2022 case of a mother unable to obtain approval for eugenic abortion very late in pregnancy — and her subsequent travel to Slovenia for the purposes of feticide — has been heavily employed in pushing against conscientious objection to abortion among the Croatian OB-GYNs, even though the case had very little to do with this issue. I have covered this affair in detail here.

Things are not looking good in the small, European, pro-life island called Malta, either. The 2022 story of an American tourist unable to terminate a medically complex pregnancy that allegedly threatened her life was swiftly picked up by international media and local pro-abortion lobbyists, putting pressure on the Maltesian government to produce an amendment to the pro-life law permitting abortion in cases when mother’s life and health are in danger. This is especially baffling since Malta has one of the lowest maternal death rates in the world — even while simultaneously having one of the strictest pro-life laws in the world. Sadly, the proposed legislation looks sufficiently vague to potentially permit all kinds of reasons for abortion.

For pro-lifers in the UK, the year 2022 was marked by several setbacks. In August, the option of at-home medical abortion, introduced during the COVID pandemic, was made permanently available, in spite of many sensible arguments stacked up against it. Bills for introducing buffer zones, preventing pro-lifers’ presence around abortion clinics, got green lights across the UK. These policies resulted in an absurd case of the UK March for Life director’s arrest for being present near an abortion clinic while possibly praying in her thoughts.

Heidi Crowter’s court case

While attacks on Poland’s protection for disabled unborn humans seem as relentless as ever (for instance, an anti-eugenic addition to the long standing Polish pro-life law has recently been called “barbaric” by the chair of the EP’s FEMM Committee), in the UK we find an opposite force in Heidi Crowter and her long court battle against legal prenatal disability discrimination.

Ms. Crowter aims to repeal section 1(1)(d) of the Abortion Act 1967, which allows abortion up to birth for disability, with the general limit on abortion set at 24 weeks. Note that in this, the UK is not an exception: there are at least 16 European countries that provide for differential gestational limits on the grounds of fetal disability and 31 that legislate in some way for abortion to be permitted on grounds of fetal disability.

Ms. Crowter’s lawyers argued that the eugenic provision in section 1(1)(d) breaches her human rights, as laid out in the European Convention on Human Rights, namely: Articles 2 (right to life), 3 (freedom from torture), 8 (respect for family and private life) and 14 (freedom from discrimination).

Having lost the case in a Divisional Court in 2021, Ms. Crowter sought and was granted the right to appeal. However, this was granted only on the basis of Articles 8 and 14 (private life and discrimination). Even though perfectly predictable in a pro-choice legal environment, where prenatal humans are not endowed with legal subjectivity, this decision put severe constraints on Ms. Crowter’s argumentation. It has given the justices of the Court of Appeal freedom to brush over the disparities in the legal treatment of prenatal humans. It’s almost as if prenatal existence is some dark, hardly-discernible mythical realm in which nothing matters, from which nothing comes, and referring to which amounts to mere superstition.

The justices do concede that this law has had a substantial negative effect on Ms. Crowter’s feelings of self-worth and dignity as pertaining to her private life. Nevertheless, the justices refused to assign any universal relevance to these feelings. Arguing that these sorts of feelings are “a matter of looking from a specific angle,” and being heavily assisted by removing of the Articles 2 and 3 (right to life and freedom from torture) from the picture, the justices ruled that the law in question does not discriminate against “living disabled” (this is the exact expression that the justices used). To put it bluntly, the Court of Appeal ruled against Heidi.

The obvious prenatal discrimination in the law (just replace disability with, for instance, female sex) has been justified by sloppy arguments, including that this special provision exists because of the possibility of finding out about pregnancy later and the possibility of learning about a diagnosis later. This is, of course, completely unsound: women may also find out that they are pregnant later in “regular” pregnancy and may likewise experience very relevant changes in their circumstances past the 24 weeks limit, but the law does not bend according to these factors – only disability apparently counts as a reason.

Resisting the urge to go too deep into analysis, I will make two final points.

One: it does not matter at all whether this discrimination concerns future or actual persons – it still constitutes discrimination. In other words, some may think the putative lack of legal or moral personhood enables one to dismiss the act of discrimination because of “a missing subject.” However, this has no effect on the existence of the act itself, embedded into the law. It may or may not have an actual effect on a “living disabled,” but it necessarily has an effect on the disabled as such. So, it’s actually the other way around: instead of conceding to the relevance of Heidi’s feelings while dismissing their general relevance, under the proper logic, the justices would have been free to either dismiss or accept Heidi’s individual feelings, but obligated to concede to the general relevance of this negative effect.

Two: pregnant women are given a legally explicit choice to abort a child due to disability and medical practitioners are obliged to inform them about it. This inevitably puts people in a position of choosing, and that implies the need to justify a reason for their child to live. This effectively discriminates against the “living disabled”; their mothers were compelled to reason for giving birth to them.

Heidi Crowter has announced her plans to take this case all the way up to the Supreme Court. I certainly hope that, if the Supreme Court picks her case, this institution will have more sense of nuance than the previous two. I dare not deem this likely, given the current course of things when it comes to prenatal justice in Europe, but one can hope. After all, isn’t that what pro-lifers always do?