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On Interpretation and Appreciation. A European Human Rights Perspective on Dobbs.

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Summary

The U.S. Supreme Court overturned abortion rights, adopting an originalist approach. In contrast, the European Court of Human Rights interprets human rights as living instruments, protecting abortion access.

Keywords:
DobbsEuropean Court of Human RightsSupreme Court of the United Statesabortioninterpretationliving instrumentmargin of appreciationprivacy

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Area of Science:

  • Legal Studies
  • Human Rights Law
  • Comparative Constitutional Law

Background:

  • The U.S. Supreme Court overturned Roe v. Wade in June 2022, ending the constitutional right to abortion.
  • The European Court of Human Rights (ECtHR) is set to rule on significant abortion cases.
  • This paper examines the divergent judicial philosophies of the U.S. Supreme Court and the ECtHR regarding abortion.

Purpose of the Study:

  • To compare the interpretative approaches of the U.S. Supreme Court and the ECtHR on abortion.
  • To analyze the implications of these differing judicial philosophies for abortion rights.
  • To highlight the contrasting legal protections for abortion access in the U.S. and Europe.

Main Methods:

  • Comparative legal analysis of landmark U.S. Supreme Court decisions (e.g., Dobbs v. Jackson Women's Health Organization) and ECtHR jurisprudence.
  • Examination of constitutional interpretation methods: originalism versus the 'living instrument' doctrine.
  • Review of case law concerning the right to respect for private life and bodily integrity in relation to abortion.

Main Results:

  • The U.S. Supreme Court adopted an originalist interpretation, leading to the removal of federal abortion protections.
  • The ECtHR views the European Convention on Human Rights as a living instrument, treating abortion regulations as potential interferences with the right to private life.
  • The ECtHR mandates positive state obligations to ensure access to lawful abortion, safeguarding pregnant women's physical and psychological integrity.

Conclusions:

  • The ECtHR provides a minimum level of protection for abortion access, unlike the U.S. Supreme Court post-Dobbs.
  • The ECtHR's 'living instrument' approach ensures mechanisms for lawful abortion, even with a margin of appreciation for member states.
  • Divergent judicial philosophies result in significantly different outcomes for abortion rights in the U.S. and Europe.