NOW AND BEYOND: ABORTION JURISPRUDENCE AT THE EUROPEAN COURT OF HUMAN RIGHTS AND DIRECTIONS FOR THE FUTURE

Abstract

This dissertation addresses the ‘right to abortion’ question under the European Convention on

Human Rights (ECHR) fixing on the jurisprudence of the European Court of Human Rights

(ECtHR). A description of the state of play of abortion rights, as part of reproductive and

international human rights, under the ECHR is given. The persistent reluctance of the ECtHR

to declare a right to abortion is discussed with respect to articles of the ECHR; in particular,

the right to respect for private life, the prohibition of inhuman and degrading treatment and the

right to non-discrimination. Recent rulings by the Polish Constitutional Tribunal are seen to

effectively limit, if not abolish, the right to legal abortion. The ability of the ECtHR to find that

such restrictive abortion laws are a violation of the ECHR is posited with respect to Article 8,

highlighting the margin of appreciation (MoA) doctrine and (European) consensus; Article 3

and the denial of abortion as inhuman and degrading treatment; and Article 14, in respect of

gender discrimination. The thesis concludes that the ECtHR has the capacity to find that

restrictive abortion legislation violates multiple articles under the ECHR, namely, Articles 3, 8

and 14. Given past decisions of the ECtHR, the finding of a violation of Article 3, an absolute

right, would seem to be the most secure way for the court to ensure that therapeutic abortion is

protected under the Convention.