Reproductive Rights: "Law Can Be an Instrument for Transformative Change"

Marie Mercat-Bruns: Reproductive rights are essential to understand the current trends we face with regard to issues of gender equality, privacy and freedom to control one’s body. But beyond, the individual choice of women to procreate or not lies the question of structural inequalities to access contraception, health care, work-life balance and equal opportunity all over the globe. Beyond the intimate question of self-determination and risks of physical harm linked to the criminalisation of abortion, lies the question of access to justice, judicial power and the limits of the democratic process in preserving rights of women or transgender persons, acquired in some countries, more than forty years ago.

Marie Mercat-Bruns: Law can be an instrument for transformative change, reflects infringements on fundamental rights or constitutes a discourse that can actually mask unchanged realities for disenfranchised groups in different countries. These tensions in law are reflected in the development and mobilisation of reproductive rights and the disparities encountered in their application all over the world.

As we look at the reversal of Roe v. Wade, stricter regulations of the access to abortion in different countries, or the French recognition of a freedom to terminate pregnancy in certain conditions, it is striking to see how the evolution of legal norms has a general impact to preserve or limit fundamental rights. It is even more compelling to see how constitutional principles, case law, and more subtle regulations can disproportionately affect certain marginalised groups. In this respect, it is notable to observe that these legal developments engender risks for women that already existed for vulnerable groups subject to stigmatisation and economic strife. Lack of enforcement of social rights and intersectional discrimination require a closer look at the way rights are interpreted and implemented in different contexts.

The recognition of lofty principles on the European level or of constitutional norms to preserve the freedom to terminate a pregnancy are not necessarily followed by concrete hands-on prevention of denial of rights. A multi-layered practical and legal response to the needs of information on access to procreative rights and modes of empowerment of NGOs on reproductive justice are not commonplace. As American Professor Reva Siegel observed in 2007, “in actual practice, (1) legal restrictions on abortion have reflected and entrenched customary, gender-differentiated norms concerning sexual expression and parenting; (2) they have conscripted the lives of poor and vulnerable women without similarly constraining the privileged; (3) they have punished women for sexual activity without holding men commensurately responsible; and (4) they have used law to coerce, but not to support, women in childbearing” (R. Siegel, Sex Equality Arguments for Reproductive Rights: their critical basis and evolving constitutional expression, Emory L. J n°56 2007, p. 821).

Helena Alviar García: If we consider legislation around the world, abortion today is allowed upon request in 77 countries. However, these laws should be analysed with a grain of salt. Having a law that permits abortion does not mean that all the institutional guarantees are available or that it is not being constantly contested by groups of citizens in Courts and Legislatures. In fact, abortion is permitted on different grounds in different places. Some countries include broad socio-economic arguments, others limit abortion to health related reasons or to protect the life of the mother. There are still many countries where there is a strict ban on abortion.

Marie Mercat-Bruns: The United States, France, and Europe have taken different stands. In Dobbs v. Jackson Women’s Health Organization (24 June 2022), the American Supreme Court reversed Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey which had recognised the fundamental right to an abortion prior to the viability of the fetus based on the right of privacy of women. Dobbs considered that the Constitution does not confer a right to abortion and the authority to regulate abortion is “returned to the people and their elected representatives” (in other words, leaving the question of whether and how to regulate abortion to individual states). Following this decision, 2024 ballot measures (referendums during the elections) supporting abortion rights passed in seven States. In Nebraska and South Dakota, a majority of votes rejected the amendments; in Florida, the 57% majority of votes proved insufficient, as the state Constitution can only be amended when a measure receives more than 60% of the vote. Reacting to this drastic restriction on procreative rights through constitutional U.S. case law, France introduced, on 8 March 2024, an amendment to the Constitution in its article 34, explicitly acknowledging the fact that “legislation determines the conditions in which women are free to terminate their pregnancy”. It is the first of its kind in the world, and any infringement will be subject to judicial review. With the support of France, on 11 April 2024, the European Parliament adopted a resolution to include the right to abortion in the EU Fundamental Rights Charter. However, the right to a “safe and legal abortion” in the legally-binding charter would require unanimous agreement by all 27 member states.

Helena Alviar García: Having a comparative perspective serves several purposes. First, it allows activists in different parts of the world to consider how political movements are mobilising to challenge women’s freedom to control their bodies. Second, the comparative advantage foregrounds the instances where certain legal arguments have been deployed to protect women’s right to protect their sexual and reproductive rights. Finally, it provides the building blocks for transnational alliances and academic sharing of knowledge.

Helena Alviar García: In these difficult times when extreme right parties are gaining ground in placing limits on women’s freedom to control their bodies, it is very important to analyse and study what the local and transnational challenges are and where the possibilities can be strengthened. For this reason, holding this comparative conference will facilitate intellectual conversations.