“The Procedural Turn: Abortion at the European Court of Human Rights” by Joanna Erdman

In Abortion Law in Transnational Perspective: Cases and Controversies (U Penn Press, 2014),  Part I, “Constitutional Values and Regulatory Regimes,” flows logically into Part II, “Procedural Justice and Liberal Access,” which develops the relationship between abortion law and practice, focusing on the prospects of procedural justice to secure women’s access to lawful services. Legality of services is a necessary precondition to service accessibility. However, unless women are aware of their legal rights and have the means to exercise them, the services to which they are lawfully entitled will remain beyond their reach. The historical proposition of the Common law that substantive legal rights emerged within the interstices of procedure remains relevant today. Women’s access to safe, lawful abortion depends on two factors: (1) women and service providers must actually know the legal grounds and the conditions under which abortion services may lawfully be rendered and (2) there must be legal procedures of timely review and appeal in the event of disagreement on whether the grounds are met in an individual case. The authors of Part II explore the promises and uncertainties of procedural justice in abortion law from three different geographic vantage points.

Joanna Erdman, “The Procedural Turn: Abortion at the European Court of Human Rights,” Abortion Law in Transnational Perspective: Cases and Controversies ed. Rebecca J. Cook, Joanna N. Erdman, and Bernard M. Dickens (University of Pennsylvania Press, 2014) pp. 121-142, notes 410-415A Spanish edition was published in August, 2016.  Ahora disponible en español.

In this sixth chapter of the book, Joanna Erdman explores the procedural turn at the European Court of Human Rights, asking whether and how procedural abortion rights can serve the substantive end that advocates claim for them: access to services. She begins with a complicating factor of discretion in abortion law, through which women may be denied services to which they are entitled, or granted services to which they are not. When discretion is challenged in the latter case, procedural claims for standards, review, and oversight threaten to restrict rather than enlarge access and thereby to confound the liberalizing promise of the procedural turn. Erdman looks to redeem this ambivalence by shifting focus, asking about the procedural turn from the perspective not of the advocate, but of an international court seeking to engender change on an issue of deep democratic conflict. Procedural rights may serve as a means for the European Court to respect the plurality of rights-based norms on abortion in Europe by working through rather than against the state, enlisting its democratic forces and its institutions in the effective protection of abortion rights. In a final shift of perspective, Erdman tests this theory in practice, asking about the impact of procedural rights on access to services as mediated through the ambitions and actions of legislatures, doctors, and women themselves, using Ireland as her case study.

Abortion Law in Transnational Perspective: Cases and Controversies was published in August 2014 by the University of Pennsylvania Press’s Studies in Human Rights Series.   Table of Contents and other information online. A Spanish edition was published in August, 2016.  Ahora disponible en español.

 

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