THE EU LISBON TREATY AND THE RIGHT TO ABORTION:
ROE V. WADE ON THE OTHER SIDE OF THE ATLANTIC?
Federico Fabbrini
The entry into force of the Lisbon Treaty on December 1st, 2009, has significantly reshaped the
European Union (EU) human rights architecture and its connection with the systems for the protection of
fundamental rights established at the national and international levels. On the one hand, the Charter of
Fundamental Rights (CFR) – only proclaimed in 2001 by the EU institutions – has now acquired the formal
status of EU constitutional law, binding all EU institutions and the Member States when acting within the
scope of application of EU law. On the other hand, the Lisbon Treaty has provided the legal basis for the
accession of the EU to the European Convention on Human Rights (ECHR), paving the way for an external
supervision by the European Court of Human Rights (ECtHR) on the human rights pedigree of the EU.
What will be the impact of the transformations mandated by the Lisbon Treaty on the European
multilevel system for the protection of fundamental rights? The article tries to address this issue by taking
into account a specific case study: the right to abortion. Currently, national laws and practices on the issue of
abortion greatly differ among the EU Member States: in particular, whereas many countries recognize, in a
more or less liberal fashion, a woman’s right to abortion, other States (e.g. Ireland and Poland) have an
extremely restrictive stand, enshrining in their fundamental laws specific prohibitions of abortion to protect
the right to life of the foetus. Otherwise, although the ECHR does not textually provide for a specific right to
abortion, national laws banning abortion have been increasingly subjected to scrutiny by the ECtHR via the
‘protection of private life’ clause of Art. 8 ECHR (cfr. recently the case A, B, C v. Ireland [2010],
Application n° 25579/05).
The EU Court of Justice (ECJ) was famously invited to express its position on the abortion issue too
in Grogan (Case C-159/90 [1991]), but at that time it chose to avoid addressing that controversial question.
How will things change, however, in light of the transformations in the protection of fundamental rights
generated by the Lisbon Treaty? To address the question the paper argues that the issue of abortion and the
role of the ECJ highlight tensions typical of pluralist systems for the protection of fundamental rights, in
which various domestic and ‘federal’/supranational human rights standards and institutions overlap. Thus,
the paper argues that the EU can be meaningfully compared with the United States of America (US) –
another system characterized by the existence of a multilayered architecture for the protection of
fundamental rights and in which the issue of abortion has historically been extremely controversial.
In Roe v. Wade 410 U.S. 113 (1973), indeed, the US Supreme Court affirmed that the US federal
Constitution recognizes a right to abortion and that, as a consequences, the several states could not prohibit
or criminalize it. The decision of the US Supreme Court thus ensured a uniform protection of the right to
abortion throughout the US. Nevertheless it raised a harsh political and constitutional debate on whether
diversity among states on a controversial issue such as abortion should be compromised by a decision of the
federal judiciary. From this point of view, the US example offers a helpful perspective to evaluate the
‘federalizing’ impact of the Lisbon Treaty on the European multilevel system for the protection of
fundamental right and to anticipate some relevant debates on the issue of abortion right that are likely to
emerge in Europe soon.
Federico Fabbrini is currently a PhD candidate at the Law Department of the European University
Institute. He holds an undergraduate degree summa cum laude in “European and Transnational Law”
from the University of Trento (Italy) (2006), a JD summa cum laude in “International Law” from the
University of Bologna (Italy) (2008) and a LLM in “Comparative, European and Transnational Law”
from the European University Institute (2009). He was a fellow of the Collegio Superiore Alma Mater
Studiorum in Bologna (Italy) (2006-2008), a visiting fellow of the Ecole Normale Supérieure in Paris
(France) (2007), a visiting student at the University of California – Berkeley (USA) (2005) and a
visiting research fellow at the Georgetown University Law Center (USA) (2010). His latest publications
include: “The Role of the Judiciary in Times of Emergency: Judicial Review of Counter-Terrorism
Measures in the United States Supreme Court and the European Court of Justice”, 28 Yearbook of
European Law (2009), 664-697; “The Right to Vote for Non-Citizens in the European Multilevel
System of Fundamental Rights Protection: A Case Study in Inconsistency?”, Eric Stein Working Paper
No. 4 (2010).