On 11th April 2021 the European parliament adopted a resolution aimed at registering abortion in the charter of fundamental rights of the European Union.
Presented by the left-wing groups of Socialists and Democrats (S&D), Renew Europe (centre and liberals), the Greens and The Left (far left), the resolution was adopted by 336 votes for, 163 against and 39 abstentions. Two other alternative resolutions were tabled, one by the PPE group, and the other by the ECR conservative group. These two alternative resolutions were not put to the vote since the first one, being presented earlier, was adopted by simple majority.
The vote is quite disconnected from the European reality as was underlined by the authors of the alternative resolutions who were calling for a policy of abortion prevention together with economic and social support for expectant mothers.
Following the registration of abortion in the French Constitution, the debate returned to the European Parliament on 14th March.
On 11th April, a resolution is to be put to the vote of the MEPs to request registration of abortion in the Charter of Fundamental Rights of the European Union. Irrespective of the result, this is a non-binding vote.
A similar resolution was already put to the vote on 7th July 2022 under the French presidency just after the decision by the United States Supreme Court to repeal the Roe vs Wade decree dated 24th June 2022. With that resolution, the MEPs were also asking the European Council to discuss a Convention to enable the revision of treaties, in order to include at article 7 of the Charter that ‘‘Any person has a right to a safe and legal abortion”.
The incompetence of the European Union on the subject of abortion
During the debates on the 14th March, several groups recalled that abortion does not come under European competence.
The absence of competence of the European Union (EU) with respect to abortion has been confirmed several times by the European institutions (European Parliament, European Commission and European Council). On 30th April 2012, the European Commissioner for Health, John Dalli, answered a question by the MEPs (E-002933/2012): “In view of the ethical, social and cultural aspects of abortion, it is up to the member States to elaborate and ensure the application of their policies and their legislation on the subject. The Commission does not intend to supplement the national public health policies in that domain”.
Public health is an internal responsibility of the member States.
According to article 168 of the Treaty on the functioning of the European Union, the EU merely holds supporting competence on the subject, which enables it to support the choices of member States concerning:
- The improvement of public health;
- Information and education on health matters;
- The prevention of diseases and causes of danger for physical and mental health;
- The fight against major epidemics, by encouraging research into their causes, their transmission and their prevention;
- The monitoring, alerting and fight against serious cross-frontier health threats;
- The reduction of the harmful effects of narcotics on health.
The fact that abortions are conducted by health professionals (doctors or midwives) does not in itself make it part of healthcare.
Directive 2011/24, relative to the application of the rights of patients concerning cross-frontier healthcare, moreover states that by “healthcare”, it refers to “health services” aimed at “evaluating, maintaining or re-establishing the state of health of a patient (article 3 a). The Directive specifies also that the definition of healthcare comes under the exclusive competence of the member States, such that “none of its provisions should be interpreted in a manner such that it undermines the fundamental ethical choices operated by the member States” (considering 7).
An improbable modification to the Charter of Fundamental Rights
Since its elaboration in December 2000, the charter has never been modified. Since December 2009 and the coming into effect of the Lisbon Treaty, the Charter of Fundamental Rights of the Union has the same obligatory legal strength as the treaties. A modification would require a unanimous agreement by the 27 member States and a debate on fundamentals.
According to Alliance VITA, the addition of abortion rights to the constitution in France is not only disconnected from the current social urgencies but it further trivialises an act which jeopardises human life.
As in France, the European priorities are quite different. Everywhere in Europe there is a drop in birth rate and a delaying of the age of motherhood. The prevention of abortions and work to support women and couples in their access to parenthood, should be an all the more necessary project for the future.
