The European Court of Human Rights, the EU Charter of Fundamental Rights, and the Right to Abortion: Roe v. Wade on the other side of the Atlantic?

Abstract

This Article analyzes the legal regulation of abortion within the context of Europe’s multilevel system for the protection of fundamental rights. The Article examines the constitutional dynamics and challenges that emerge in the field of abortion law from the overlap between national and supranational norms in Europe, comparing the European multilevel architecture with the United States (U.S.) federal system. To this end, the Article summarizes the main trends in the regulation of abortion in the various European Union (“EU”) countries, assesses the growing impact of the EU and the European Convention on Human Rights in the field of abortion law, and emphasizes how supranational law generates new pressures and creates several inconsistencies within the domestic legal systems of those states which restrict abortion rights. It then explores how analogous dynamics have historically been at play in the U.S. federal system. Finally, the Article evaluates—in light of the U.S. experience—the potential consequences upon the European abortion regime of the most recent developments in the European Court of Human Rights case law and the entry into force of the EU Charter of Fundamental Rights via the Lisbon reform Treaty.