Abortion Law in Transnational Perspective: Cases and Controversies

2. Abortion in Portugal: New Trends in European Constitutionalism

C h a p t e r 2 Abortion in Portugal: New Trends in European Constitutionalism Ruth Rubio-Marín Despite persistent variation, abortion legislation in Europe has experienced a common and gradual liberalizing trend. Most European countries exempt from punishment abortions performed to protect a woman’s health and life, in cases of serious fetal malformations, and where pregnancy results from rape (the commonly known therapeutic, eugenic, and ethical indications). This progressive trend has continued with most European countries adopting ever more liberal interpretations of the indications, or adding a social indication to the regime. Many countries even allow women themselves rather than third parties to verify the existence of a social indication, for example, to declare themselves in a situation of distress. Still further liberalization can be seen in an increasing number of countries embracing a periodic model, where women can freely decide whether to carry their pregnancies to term before an upper gestation limit ranging from twelve to eighteen weeks. Coupled with this periodic model are regulations that often require counseling and reflection periods, though countries differ in the rationale for these requirements. Some counseling regulations seek only to ensure women’s informed decision making. Others intend counseling to dissuade women from having an abortion. Of note, this progression toward liberalization in Europe has tended not to rely on constitutional law. Neither women nor those defending women’s reproductive rights have relied primarily on constitutions or constitutional Abortion in Portugal 37 courts to advance their position. European constitutional texts, for the most part, are silent on abortion or matters of reproduction generally, and it has not been women or rebellious doctors but conservative political forces that have seized the courts, seeking to resist legislative liberalization. In some countries such as France1 and Austria,2 such attempts were unsuccessful from the start, with the courts allowing legislators to proceed unimpeded. In others such as Germany,3 Hungary,4 and Poland5 the courts did step in to curb progressive legislation. Perhaps the most influential of these decisions was that of the German Federal Constitutional Court, which in 1975 struck down a periodic legislative reform. This case proved paradigmatic in the region and beyond, by framing abortion constitutionalism primarily in terms of the protection of unborn human life, linked to the normalization of women’s duty of motherhood . In time, even the German constitutional doctrine would come to validate the periodic model of abortion regulation, now widespread across the region. But this was first accomplished merely on strategic grounds, namely on the view that dissuasive counseling and social assistance might prove the only effective way to deter abortions. More important in the history of European liberalization of abortion constitutionalism is the fact that, in more recent times, we have come to see a shift in rationale. The emergence of a constitutional doctrine of abortion that respects the German legacy and grants constitutional protection to unborn human life but also accepts periodic legislation in respect of women’s constitutional dignity and autonomy rights. In other words, although the state’s obligation to show respect to unborn life is maintained, the normalization of pregnant women’s duty of motherhood is challenged. An articulate expression of this doctrine was provided by the Portuguese Constitutional Court in a 2010 decision6 validating the 2007 periodic legislation that allows women to decide whether to have an abortion within the first ten weeks of pregnancy.7 Women are required to undergo counseling, but the counseling is explicitly nondirective. Portugal has a rich history of abortion constitutionalism, its Constitutional Court having delivered five abortion decisions since the mid-1980s, in every case validating yet ever more progressive reform. In the first set of decisions , dating from 19848 and 1985,9 the Constitutional Court backed an indication-based reform against an otherwise complete criminal prohibition. In the second set of decisions, in 199810 and 2006,11 the Court again upheld the constitutionality of progressive reform through national referenda on the 38 Constitutional Values and Regulatory Regimes legislative introduction of a periodic regime. In its most recent 2010 decision, the Court pushed the development of European constitutional abortion law by validating a periodic regime with nondissuasive counseling, relying on a reading of the Portuguese Constitution that requires state protection of both intrauterine life and women’s reproductive autonomy.12 The chapter seeks to unravel this evolution in Portugal’s abortion constitutional jurisprudence, and to isolate the legal and...