Abortion Law in Transnational Perspective: Cases and Controversies

3. Women’s Rights in the Abortion Decision of the Slovak Constitutional Court

C h a p t e r 3 Women’s Rights in the Abortion Decision of the Slovak Constitutional Court Adriana Lamačková In 2007, the Constitutional Court of the Slovak Republic held that abortion on a woman’s request is consistent with the constitutional obligation to protect unborn human life.1 The question of compatibility between a liberal abortion law and the right to life is not a new question in European constitutional law. After the end of state socialism, constitutional courts across Central Europe, including Germany, Hungary, and Poland, asked and answered this question.2 The Slovak Court, however, is the only Court in the region to validate abortion on request by reference to state obligations both to protect unborn human life and to respect the right of women to reproductive selfdetermination . Abortion on request was held not merely consistent with the rights of women, but required by them. These rights imposed obligations and related limitations on the state in its regulation of abortion, constitutionally requiring rather than merely permitting abortion on request. The decision of the Slovak Constitutional Court is noteworthy in the region for this reason. It does not consider the protection of unborn human life to be the sole nor even the primary value of constitutional abortion law. A woman’s right to reproductive self-determination enjoys full and equal standing in the constitutional order. This chapter seeks to show how the decision of the Slovak Court, by giving full recognition and effect to the rights of women, reflects a fundamental shift in European constitutional abortion law. This shift is captured in the Court’s use of balancing as an analytical framework, The Slovak Constitutional Court 57 according to which multiple constitutional rights and values are vindicated, none completely overruling any other. The chapter proceeds in three sections. In the first section, I outline the development of abortion regulation in Slovakia, with attention to an evolving discourse around women’s reproductive decision making. Next I focus on the 2007 Slovak Court decision upholding abortion on request. This section highlights the uniqueness of the Court’s reasoning, specifically its robust analysis of women’s rights in reproductive self-determination, against constitutional abortion decisions of other courts in Central European countries. The final section briefly describes the legislative developments after the decision and the related change in anti-abortion discourse and argument in Slovakia. The Woman in Abortion Decision Making and Regulation: 1918–2001 The significance of the 2007 decision can best be appreciated against the history of abortion regulation in Slovakia from 1918 until 2001, the year the constitutional challenge was filed. This history cannot be told without attention to larger political and social change in the country, namely the creation of Czechoslovakia in 1918, the period of state socialism from 1948 to 1989, and the dissolution of the federal state of Czechoslovakia in 1992, leading to the successor sovereign states of the Slovak Republic (Slovakia) and the Czech Republic. This section is divided into two parts, marked by the critical transition from state socialism in 1989. From 1918 to 1989 Until 1950, abortion was criminally prohibited in Czechoslovakia under all circumstances.3 During this prohibition, hundreds of women were punished for having illegal abortions, and each year thousands of women were reported to have died from unsafe abortions, with countless more women suffering severe health effects.4 The impact of illegal abortions on the health of women and the well-being of their families, especially those of lower income , led to several unsuccessful legislative initiatives to decriminalize abortion in the interwar period.5 Support for these proposals was largely based on protecting women’s health and well-being, but some members of parliament, 58 Constitutional Values and Regulatory Regimes formerly active in the women’s movement, supported the proposals on the basis of a woman’s right to decide the fate of her pregnancy.6 The proposals ultimately failed, until 1950, when a new Criminal Code introduced life and health exceptions to the prohibition under certain conditions.7 Spurred by Soviet developments in abortion regulation and the efforts of several individuals in Czechoslovakia who advocated for liberalization of abortion before and after WWII,8 further liberalization occurred in 1957 when the first abortion-specific law9 was adopted in Czechoslovakia. The new law cancelled the regulation of abortion in the Criminal Code and permitted abortion until the twelfth week of pregnancy on health grounds...