10. Most countries in the world do not enshrine reproductive rights explicitly in their constitutional documents. Perhaps surprisingly, as will be discussed below, most of the few countries that do enshrine reproductive rights in their constitutions have restrictive, and even highly restrictive, policies with regard to abortion. Consequently, reproductive rights may serve as an example for the often tenuous connection between the rights’ guarantees that appear in constitutional documents and the legal and practical reality of how these guarantees are fulfilled.
11. The following comparative constitutional discussion will focus on those countries in which reproductive rights or reproductive duties (the general right to life of the unborn and the more specific right to life of the unborn from the moment of conception) have been explicitly mentioned in the constitution, and will cover most of them. In addition, the discussion will cover several countries in which there have been important developments in recent years, even if reproductive rights are not mentioned explicitly in their constitutions.
12. Although the discussion will focus on countries whose constitutional text explicitly mentions reproductive rights or duties, it is important to point out that reproductive rights (and duties) can and do exist to differing extents in countries in which there is no explicit mention of them in the constitutional text, such as the United States (‘US’) (Constitution of the United States of America: 17 September 1787 (as Amended to 7 May 1992), (US)) or Australia (Commonwealth of Australia Constitution Act: 9 July 1900 (as Amended to 31 October 1986), (UK) 1900 c.12 (63 and 64 Vict)). Furth ermore, while reproductive rights and duties are not enumerated in most constitutions, almost all countries in the world have laws regulating the most important aspect of reproductive rights—abortion (Center for Reproductive Rights, ‘The World Abortion Laws 2016’). A notable exception is Canada where the Supreme Court struck down the criminal law provisions regulating abortion in 1988, and no new criminal law regulating abortion has since then been passed (R v Morgentaler (1988) (Can)). Consequently, abortion is legal in Canada at all stages of pregnancy. Thus, the explicit mention of reproductive rights or duties in the constitutional text, or the lack thereof, is not necessarily indicative of the extent of the rights and duties set out in legislation or existing in practice.
1. Explicit Mention of Reproductive Rights/Health in Constitutions
13. In most constitutions there is no explicit mention of reproductive rights/reproductive health. Even in the seven countries whose constitutions do include an explicit guarantee of either reproductive rights or reproductive health, the scope of the right changes significantly from country to country, mainly with regard to the regulation of abortions. The discussion of these countries below will demonstrate that the guarantee of reproductive rights does not guarantee the right to have an abortion, especially in those cases in which the constitution simultaneously guarantees the right to life of the unborn.
14. In Kenya, Art. 43 of the Constitution states that every person has the right ‘to the highest attainable standard of health, which includes the right to health care services, including reproductive health care’ (Constitution of the Republic of Kenya: 6 May 2010, Chapter IV The Bill of Rights, part II Rights and Fundamental Freedoms, Art. 43 Economic and social rights, Section (1)(a) (Kenya)). Nevertheless, the Constitution also states that the right to life begins at conception (Art. 26(2)), and that abortion is only permitted if in the opinion of a trained health professional there is need for emergency treatment, or the life or health of the mother is in danger (Constitution of the Republic of Kenya: 6 May 2010, Chapter IV The Bill of Rights, part II Rights and Fundamental Freedoms, Art. 26(2), (4) Right to life (Kenya)).
15. In Ecuador, the Constitution guarantees both the right to reproductive health (Constitution of the Republic of Ecuador: 28 September 2008 (as Amended to 7 May 2011), Section 7 Health, Art. 32 (Ecuador)), and the right to reproductive self-determination. With regard to reproductive self-determination Art. 66 states that: ‘The following rights of persons are recognized and guaranteed: … 10. The right to take free, responsible and informed decisions about one’s health and reproductive life and to decide how many children to have.’ (Constitution of the Republic of Ecuador: 28 September 2008 (as Amended to 7 May 2011), Chapter 6 Rights to freedom, Art. 66(10) (Ecuador)). Notwithstanding these seemingly extensive guarantees, the Ecuadorian Criminal Code prohibits abortion in all cases except those involving a threat to the life or health of a pregnant woman when the danger cannot be averted by other means, or where the pregnancy is the result of the rape of a woman with a mental disability (Penal Code (1983), Title VI, Chapter I, Arts 441–447 (Ecuador)).
16. Similarly, in Zimbabwe, while the Constitution guarantees every citizen and permanent resident the right to have access to reproductive health care services (Constitution of the Republic of Zimbabwe: 22 May 2013, Chapter IV: Declaration of Rights, Part II: Fundamental Human Rights and Freedoms, Art. 76 right to health care Section (1) (Zim)), the right to abortion is restricted. This restriction originates in Art. 48(3) of the Constitution, which instructs the parliament to protect the lives of unborn children through an act of parliament that will allow the termination of a pregnancy only in accordance with that law (Constitution of the Republic of Zimbabwe: 22 May 2013, Chapter IV: Declaration of Rights, Part II: Fundamental Human Rights and Freedoms, Art. 48 right to life Section (3) (Zim)). Consequently, abortion is permitted in Zimbabwe only in cases of rape, fetal impairment, incest, and to protect the physical health of the woman (Termination of Pregnancy Act, Acts 29/1977, 6/2000, 8/2001, 22/2001, Section 4 (1977) (Zim)).
17. In Bolivia, Art. 66 of the Bolivian Constitution guarantees women and men ‘the exercise of their sexual rights and their reproductive rights’ (Constitution of the Pluri-National State of Bolivia: 25 January 2009, Part I: Fundamental Bases of the State: Rights, Duties and Guarantees, Chapter V: Social and Economic Rights, Section VI: Rights of the Family, Art. 66 (Bol)). Nevertheless, the Bolivian Penal Code allows abortion only in cases of rape or incest, or if the woman’s health or life is at risk, and even that is subject to judicial authorization (Penal Code (1972), Title VIII, Chapter II, Arts 263–269 (Bol)). A constitutional challenge to the Penal Code based on Art. 66 of the Bolivian Constitution was rejected by the Bolivian High Court in 2014, although the Court struck down the requirement for prior judicial authorization of a legally permissible abortion (Decision 0206/2014 (5 February 2014) (Bol)).
18. Art. 61 of the Constitution of Paraguay includes a detailed guarantee of reproductive rights:
19. However, since the Paraguayan constitution includes a guarantee of the right to life from the moment of conception (Constitution of the Republic of Paraguay: 20 June 1992 (as Amended to 8 November 2011), Title II: Of the Rights, of the Duties, and of the Guarantees, Chapter I: Of Life and of the Environment, Section I: Of Life, Art. 4: Of the Right to Life (Para)) abortion is permitted only to save the life of the mother, making the Paraguayan abortion regime one of the strictest in the world (Criminal Code of Paraguay: Art. 109 (4) Law No 1.160/97 (Para)).
20. While most countries that have an explicit mention of reproductive rights in their constitution have restrictive abortion regimes, two countries–South Africa and Nepal–have permissive abortion regimes. The South African Constitution guarantees the right to have access to reproductive health care (Constitution of the Republic of South Africa: 16 December 1996 (as Amended to 1 February 2013), Chapter 2 Bill of Rights, Art. 27 Health care, food, water and social security (Act No 108 of 1996) (S Afr)), and South African law enables women to perform an abortion upon request for the first 12 weeks of pregnancy, with stricter regulation thereafter (Choice on Termination of Pregnancy Act (Act No 92 of 1996) (S Afr)). The Christian Lawyers Association in South Africa filed a constitutional challenge against the right to abortion based on the right to life of the fetus. The challenge was rejected by the South African Supreme Court, which held that since the Constitution did not include an explicit protection for the right to life of the unborn, such a right cannot be inferred from the general guarantee for the right to life in the Constitution and consequently legal abortion does not offend the Constitution (Christian Lawyers Association v Minister of Health (1998) (S Afr)).
21. In Nepal, Art. 38 of the Constitution ensures all women the right to safe motherhood and reproductive health (Constitution of the Federal Democratic Republic of Nepal: 20 September 2015, Part III Fundamental Rights and Duties, Art. 38 Right of Women (Nepal)), and the Nepali abortion law sets the specific terms under which legal abortions can be performed, allowing abortion upon the request of the woman for the first twelve weeks of the pregnancy with stricter regulation thereafter (Muluki Ain, 2020, General Code (1963) Chapter 10, Number 28–28B (Nepal)). In 2009, a woman who could not undergo an abortion because she lacked the financial means to pay for it brought a constitutional challenge against the state, claiming that the state was constitutionally mandated to provide her with access to a safe and affordable abortion. The Supreme Court of Nepal held that since the right to life of the unborn is not explicitly stated in the Constitution, it is not protected by it and that the right to abortion is an integral part of reproductive rights and is therefore protected by the Constitution. In its groundbreaking decision, the Court held that the constitutional guarantee of women’s reproductive rights requires the state to ensure that women have access to a safe and affordable abortion (Lakshmi Dhikta v Government of Nepal (2009) (Nepal)).
2. Explicit Mention of the Right to Life of the Unborn
22. Fourteen constitutions (including the three already mentioned above), mainly those of countries that are predominantly Roman Catholic, explicitly protect the right to life of the unborn and place severe restrictions on abortions. The discussion of several of these countries below will provide examples of the various ways in which the constitutional right to life of the unborn affects women’s reproductive rights. One country that places severe restrictions on abortions is the Dominican Republic, where Art. 37 of the Constitution pronounces that: ‘The right to life is inviolable from conception to death’ (Constitution of the Dominican Republic: 26 January 2010, Title II: Of the Fundamental Rights, Guarantees and Duties, Chapter I: Of the Fundamental Rights, Section I: Of the Civil and Political Rights, Art. 37 Right to Life (Dom Rep)). Abortion in the Dominican Republic is completely prohibited and amendments to the penal code allowing for abortion in cases where the life of the woman is in danger, the pregnancy is the result of rape or incest, or there exists a life threatening fetal impairment were struck down by the constitutional court as being incompatible with the constitutional protection of the inviolability of the right to life from the moment of conception (Sentencia TC/0599/15 (17 December 2015) (Dom Rep)).
23. Examples of other countries in which the protection of the right to life of the unborn translates into blanket criminalization of all abortions are Chile (Political Constitution of the Republic of Chile: 8 August 1980 (as Amended to 18 August 2005), Chapter III: Constitutional Rights and Duties, Art. 19 (Chile); Código Penal (Penal Code) (1874), Second Book, Title VII, Arts 342–345 (Chile)), El Salvador (Constitution of the Republic of El Salvador: 15 December 1983 (as Amended to 27 May 2009), Title I Sole Chapter the Human Person and the Ends of the State, Art. 1 (El Sal); Código Penal (Penal Code) (1997) Legislative Decree 1030 of 26 April 1997, Chapter II, Arts 133–137 (El Sal)), Philippines (Constitution of the Republic of the Philippines: 15 October 1986, Article III, Section 12 (Phil); The Revised Penal Code of the Philippines, Act. No 3815 of 8 December 1930, Arts 256–259 (Phil)).
24. In Ireland, the constitutional protection of the right to life of the unborn introduced into the constitution in 1983 was used to justify a blanket criminal ban on abortion (Constitution of Ireland: 29 December 1937 (as Amended to 4 October 2013), Fundamental Rights, Personal Rights, Art. 40.3.3 (Ir)) but this blanket ban was declared unconstitutional by the Irish Supreme Court in 1992 in the X case (The Attorney General v X and Others (1982) (Ir)), because it does not make an exception for cases in which the life of the woman is in danger. Immediately following the X case, two 1992 amendments to Art. 40.3.3 ensured the right of women to leave Ireland in order to perform an abortion outside the country and to obtain information regarding abortion services lawfully available in another country (Constitution of Ireland: 29 December 1937 (as Amended to 4 October 2013), Fundamental Rights, Personal Rights, Art. 40.3.3 (Ir); Thirteenth Amendment of the Constitution Act, 1992 (Ir); Fourteenth Amendment of the Constitution Act, 1992 (Ir)). However, it took twenty more years until an exception allowing abortion in cases where a woman’s life was endangered was inserted into the law (Protection of Life During Pregnancy Act 2013.9 (Act No 35 of 2013 (Ir)). In this context, it is worth mentioning the constitutional implications of the European Court of Human Rights (ECtHR) decision in the case of A, B and C v Ireland (ECtHR) (2010). In this case, petitioners challenged the very restrictive Irish abortion policy and its implementation, arguing that it was in violation of Art. 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950). The Court found that there was a consensus among the contracting states in Europe that abortion should be permitted on health and well-being reasons: around 30 contracting states allow abortion on request, approximately 35 on well-being grounds and around 40 on health grounds, while only three states have restrictive abortion policies similar to the Irish policy (Section 235). Nevertheless, the court refused to hold that Art. 8 of the Convention confers a right to abortion (Section 214) and held that the highly restrictive abortion regime set forth in the Irish Constitution was not in violation of the European Convention of Human Rights (Section 241), although its application to the third applicant did violate the Convention (Section 267–268). The dissent in the case, which argued that Ireland’s restrictions on abortion do violate Art. 8 of the Convention, reminded the court that according to its own case law when there is a consensus among European states regarding the interpretation of a right, the court almost always enforces this consensus on recalcitrant states (Section 6 of partial dissent). However, the Court in this case chose to rely on the ‘profound moral views of the Irish people as to the nature of life’ in order to avoid such enforcement (Section 241 of judgment), a move which is indicative of the reluctance of the court to enforce a right to abortion (Consentino).
25. Not all countries in which there is an explicit mention of the right to life from the moment of conception have such restrictive abortion policies. For example, in Hungary Art. II of the Constitution states that ‘…the life of the fetus shall be protected from the moment of conception’ (Constitution of the Republic of Hungary: 18 April 2011 (as Amended to 26 September 2013), Freedom and Responsibility, Art. II (Hung)), but abortion is permitted for health reasons, if the pregnancy was the result of a criminal act, or if due to the pregnancy the woman is in a severe psychological or social crisis, but it is subject to counselling which is aimed at persuading the woman to keep the pregnancy (Act LXXIX of 1992 on the Protection of Fetal Life, Sections 5–9 (Hung)). An even less restrictive abortion policy can be found in the Slovak Republic where although Art. 15 of the Constitution states that ‘human life is worthy of protection already before birth.’ (Constitution of the Slovak Republic: 1 September 1992 (as Amended to 1 May 2006), Title Two Fundamental Rights and Freedoms, Section Two Fundamental Rights and Freedoms, Art. 15 (Slovk)), abortion is permitted upon request up to the twelfth week of pregnancy subject to waiting periods, and for minors subject also to parental notification (Act No 73/1986 Coll. on Artificial Interruption of Pregnancy (as Amended by Act No 419/1991 Coll.) (Slovk); Act No 345/2009 Coll. of Laws Amending Act No 576/2004 Coll. on Healthcare, Healthcare-related Services and Amending and Supplementing Certain Acts, as amended (Slovk)).
26. While the American Constitution does not mention the right to life of the fetus, some American states have amended their state constitutions to include explicit mentions of the right to life of the fetus or of restrictions on abortion (Constitution of the State of Tennessee: 26 March 1870 (as Amended to 4 November 2014), Article I, Section 36 (US); Constitution of the State of Arkansas: 13 October 1874 (as Amended to 8 November 2016 Amendment 68 (US); Constitution of the State of Colorado: 1 July 1876 (as Amended to 6 November 2012), Article V, Section 50 (US)). These amendments reflect the ongoing struggle within the US over the constitutional right of women to have an abortion, which the US Supreme Court derived from the constitutional right to privacy (Roe v Wade Case (US) (1973)) and whose current contours have been determined in the Casey case (Planned Parenthood v Casey (1992) (US)) in which it has been held that abortion restrictions that impose an ‘undue burden’ on women seeking abortions are unconstitutional. In recent years the struggle over the right to abortion has resulted in the enactment of hundreds of state restrictions on abortions (Nash). A recent ruling of the US Supreme Court in the Whole Woman’s Health case (Whole Woman’s Health v Hellerstedt (2016) (US)) has set some boundaries to these restrictions by striking down a Texas law that imposed extensive burdens on abortion providers, whose implementation would have caused the shut-down of most abortion clinics in Texas. The Court clarified the undue burden test, holding that a restriction’s burden cannot outweigh its benefits and that clear evidence needs to be put forward to justify the state’s claim that the restricting law actually confers the claimed benefits (Whole Woman’s Health v Hellerstedt (2016) 19–20 (US)). While this ruling will likely apply to similar laws passed by five other states, its effects on the laws of 19 other states whose restrictions on abortion providers are less onerous than the invalidated Texan law is unclear (Nash).