Abortion and Constitutional Law : a comparative European-American study

Abstract

Between January 1973 and February 1975 five major constitutional courts in the Western world ruled on the abortion issue. The constitutional decisions issued by the United States Supreme Court, the Austrian Constitutional Court, the French Constitutional Council, the German Federal Constitutional Court, and the Italian Constitutional Court are the point of departure of this study. In all five cases the question under review was if, and on what conditions, a pregnant woman is allowed under the Constitution to have an abortion. The answers given to this question by the respective constitutional courts differ on many basic points. Whereas the US Supreme Court declared the woman’s fundamental right to have an abortion during the first three months of pregnancy and struck down almost all state abortion laws which prohibited abortion in some way, the German Constitutional Court, on the contrary, stated that the unborn’s right to life is protected under the Constitution as from the Nth day after conception and declared the recently passed abortion reform unconstitutional. The Austrian, French and Italian Courts took a less radical position. The Austrian Constitutional Court upheld a liberal and the French Constitutional Council a moderate abortion reform. The Italian Constitutional Court struck down an old, restrictive abortion law, however in moderate terms.