Congratulations and thanks to Djordje Gardašević, a professor of Constitutional Law at the University of Zagreb, for introducing and convening a Symposium for the International Journal of Constitutional Law‘s I-CONnect Blog. The Symposium provides a summary and comments by three law professors about the Croatian Constitutional Court’s abortion ruling of February 21, 2017. The Court’s decision is now online in Croatian and English (unofficial abridged translation).
“The 2017 Croatian Constitutional Court’s Abortion Ruling” recently appeared on I-CONnect in three parts
— “Reconciling with the Past, Looking to the Future,” by Prof. Djordje Gardašević, Constitutional Law, University of Zagreb, Introduction
— “A Nominal Win for Reproductive Freedom,” by Prof. Ana Horvat Vuković, Constitutional Law, University of Zagreb, June 16, 2019, Reproductive Freedom.
— “Finding Common Ground amid Differences in Approach,” by Prof. Sonia Human, Faculty of Law, Stellenbosch University, June 18, 2019, Common Ground.
“Reconciling with the Past, Looking to the Future”
Twenty-six years after it had received the first in a series of motions to start the constitutional review, on February 21st 2017 the Croatian Constitutional Court finally delivered its ruling on the constitutionality of the Act on Health Measures on the Exercise of the Right to the Freedom of Decision-Making on Giving Birth.
In its crucial part, the said Act, originally enacted in 1978, prescribes that termination of pregnancy may be performed within 10 weeks of conception and after the expiration of that period only further to the approval of a commission under the conditions and according to the procedure set out in the Act. More precisely, abortion in that subsequent period can be performed only: “where it is established on the basis of medical indications that the life of the woman could not be saved or a deterioration in health prevented during pregnancy, delivery, or post-partum; where it can be expected on the basis of medical indications and knowledge of medical science that the child will be born with serious congenital physical or mental defects; and where conception was the result of the criminal offence of rape, intercourse with a helpless person, intercourse by abuse of position, intercourse with a child, or incest.“ (See Article 22 of the Act and para 3.1 of the Ruling).
In its 2017 Ruling, the Court, although with one sharp dissent, upheld the constitutionality of the contested Act and clarified that its constitutional interpretation relied upon several crucial elements:
⊗ First, that any legislative arrangement must take into account the overall constitutional framework and especially its highest values (freedom, equal rights, national equality and equality of genders, love of peace, social justice, respect for human rights, inviolability of ownership, conservation of nature and the environment, the rule of law, and a democratic multiparty system) values which serve as the ground for interpretation of the Constitution (Constitution online in English).
⊗ Second, that the appropriate resolution of the case requires invocation of several constitutionally guaranteed rights or freedoms (human dignity, right to life, rights to liberty and personality and the right to privacy which in itself also includes the right of each person to free decision-making and self-determination).
⊗ Third, that any interference in the right of privacy must be prescribed by law, that it must pursue specific legitimate aims and that it must be necessary for the protection of such aims in a democratic society. Moreover, the notion of “necessity” stressed by the Court here, as the strictest constitutional requirement, must reflect the “pressing social need” (or “crucial societal need”) for the protection of one or more legitimate aims.
⊗ Fourth, that the right to life of the unborn in that sense “is not protected to have an advantage over or greater protection than a woman’s right to privacy“ and that “the legislator enjoys freedom of discretion in striking a fair balance between a woman’s right to free decision-making and privacy, on the one hand, and the public interest in ensuring the protection of an unborn being, on the other.“ And
⊗ fifth, that the termination of pregnancy “should not be understood as a family planning measure or as a means of contraception“. (paras 41: 1-45)
While rejecting to accept its jurisdiction regarding the question of “when life begins” (para 45.1), the Constitutional Court determined that “it is up to the legislator to prescribe the procedure and period within which termination of pregnancy at the woman’s request may be performed without any limitations.” (para 46, my emphasis)
At the same time, the Court also instructed the parliament to “modernize” the Act within two years, taking into account “new legal and institutional framework for health, social, and science and educational systems” which had meanwhile developed since the adoption of the new Croatian Constitution.
Here, the Constitutional Court stressed that those new systems “are based on other [subsequently developed and accepted] values and principles, and [that] they are aligned with the Constitution and international standards as well as with advances in science and medicine, which are complemented with changes in the systems of health care, education, and social policy” (para. 49.1).
To that specific point, the Court stated that the legislature “is free to issue measures that it considers purposeful for promoting sexually responsible behaviour and the responsibility of both man and woman in the prevention of unwanted pregnancies through educational and preventive programmes”, that the legislature “in order to enable the woman to determine freely regarding pregnancy and maternity, may set an appropriate deliberation period before a decision on termination or continuation of pregnancy is made, during which she would receive all information on pregnancy and services available”, and that “it is up to the legislator to determine how the new act will regulate the question of costs resulting from the termination of pregnancy…, the question of conscientious objection of doctors who do not want to perform terminations of pregnancy, etc.”(para. 50)
And in that particular context, the majority opinion clearly stated that “It is up to the legislator to prescribe in the new act educational and preventive measures… so that termination of pregnancy is an exception.“(para. 50) [my emphasis]
At the time of writing (June, 2019), the Croatian parliament has not yet enacted the new legislation, although the “instructive” deadline set up by the Constitutional Court has already passed. According to the most recent media information, though, the draft of the new Act is to be expected in due time.
Constitutional Court of Croatia. Decision of February 21, 2017. Rješenje Ustavnog Suda Republike Hrvatske, broj: U-I-60/1991 i dr. od 21.veljace 2017. Decision online in Croatian. Unofficial abridged translation into English Summary in English from CRR. Court’s Press release in English.
Constitution of Croatia 1991, rev. 2013: ,Constitution in English.
Abortion Law Decisions, organized by country, with links to decisions, are online here.
Compiled by: the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca. See Program website for our Publications, Information resources, and Reprohealthlaw Commentaries Series. TO JOIN THE REPROHEALTHLAW BLOG: enter your email address in the upper right corner of our blog, then check your email to confirm the subscription.