[Editor’s Note: I-CONnect is pleased to feature a three-part symposium on the Croatian Constitutional Court’s 2017 ruling on abortion. The symposium is kindly organized by Professor Djordje Gardasevic, who has written today’s Introduction to the symposium.]
—Djordje Gardasevic, Associate Professor of Constitutional Law, University of Zagreb, Faculty of Law
Twenty-six years after it received the first in a series of motions for constitutional review, the Croatian Constitutional Court delivered its ruling on the constitutionality of the Act on Health Measures on the Exercise of the Right to the Freedom of Decision-Making on Giving Birth on February 21, 2017.[1] In this post, I discuss the Act, the Court’s judgment on it, and I introduce the symposium on the ruling.
In its crucial part, the Act, originally enacted in 1978, prescribes that pregnancy may be terminated within 10 weeks of conception. After the expiration of that period, termination is possible only with the approval of a commission under the conditions and according to the procedure set out in the Act. More precisely, abortion in that subsequent period can be performed only
[w]here it is established on the basis of medical indications that the life of the woman could not be saved or a deterioration in health prevented during pregnancy, delivery, or post-partum; where it can be expected on the basis of medical indications and knowledge of medical science that the child will be born with serious congenital physical or mental defects; and where conception was the result of the criminal offence of rape, intercourse with a helpless person, intercourse by abuse of position, intercourse with a child, or incest.[2]
In its 2017 ruling, the Court, although with one sharp dissent, upheld the constitutionality of the contested Act and clarified that its constitutional interpretation relied upon several crucial elements. First, that any legislative arrangement must take into account the overall constitutional framework and especially its highest values.[3] Second, that the appropriate resolution of the case requires invocation of several constitutionally guaranteed rights or freedoms (human dignity, right to life, rights to liberty and personality and the right to privacy which in itself also includes the right of each person to free decision-making and self-determination). Third, that any interference in the right of privacy must be prescribed by law, that it must pursue specific legitimate aims, and that it must be necessary for the protection of such aims in a democratic society. Moreover, the notion of “necessity” stressed by the Court here, as the strictest constitutional requirement, must reflect the “pressing social need” (or “crucial societal need”) for the protection of one or more legitimate aims. Fourth, that the right to life of the unborn in that sense “is not protected to have an advantage over or greater protection than a woman’s right to privacy” and that “the legislator enjoys freedom of discretion in striking a fair balance between a woman’s right to free decision-making and privacy, on the one hand, and the public interest in ensuring the protection of an unborn being, on the other.” And fifth, that the termination of pregnancy “should not be understood as a family planning measure or as a means of contraception.”[4]
While declining jurisdiction on the question “when life begins”[5], the Constitutional Court determined that “it is up to the legislator to prescribe the procedure and period within which termination of pregnancy at the woman’s request may be performed without any limitations.”[6]
At the same time, the Court also instructed the parliament to “modernize” the Act within two years, taking into account “new legal and institutional framework for health, social, and science and educational systems” which had meanwhile developed since the adoption of the new Croatian Constitution.[7] To that specific point, the Court stated that the legislature “is free to issue measures that it considers purposeful for promoting sexually responsible behaviour and the responsibility of both man and woman in the prevention of unwanted pregnancies through educational and preventive programmes,” that the legislature “in order to enable the woman to determine freely regarding pregnancy and maternity, may set an appropriate deliberation period before a decision on termination or continuation of pregnancy is made, during which she would receive all information on pregnancy and services available,” and that “it is up to the legislator to determine how the new act will regulate the question of costs resulting from the termination of pregnancy…, the question of conscientious objection of doctors who do not want to perform terminations of pregnancy, etc.”[8]
And in that particular context, the majority opinion clearly stated that “It is up to the legislator to prescribe in the new act educational and preventive measures… so that termination of pregnancy is an exception.”[9]
At the time of my writing[10], the Croatian parliament has not yet enacted the new legislation, although the “instructive” deadline set up by the Constitutional Court has already passed. According to the most recent media information, though, the draft of the new Act is to be expected in due time.
In the two following parts of this special symposium on this important ruling of the Croatian Constitutional Court, I am pleased to announce that comments will be published by two distinguished scholars: Assistant Professor Ana Horvat Vukovic of the University of Zagreb, Faculty of Law, and Professor Sonia Human of Stellenbosch University, Faculty of Law.
Suggested Citation: Djordje Gardasevic, Symposium–Introduction: Reconciling with the Past, Looking to the Future: The 2017 Croatian Constitutional Court’s Abortion Ruling, Int’l J. Const. L. Blog, June 15, 2019, at: http://www.iconnectblog.com/2019/06/symposium–introduction:-reconciling-with-the-past,-looking-to-the-future:-the-2017-croatian-constitutional-court’s-abortion-ruling
[1] Constitutional Court of Croatia, Decision of February 21, 2017 regarding abortion (in the following text: the ruling).
[2] Article 22 of the Act on Health Measures on the Exercise of the Right to the Freedom of Decision-Making on Giving Birth (in the following text: the Act). For precise clarifications regarding the procedure and special conditions for performing the abortion according to the Act, see the text of the Act contained in the translation of the ruling of the Croatian Constitutional Court attached here (Par. 3.1 of the ruling).
[3] Article 3 of the Constitution of the Republic of Croatia enumerates those highest values (freedom, equal rights, national equality and equality of genders, love of peace, social justice, respect for human rights, inviolability of ownership, conservation of nature and the environment, the rule of law, and a democratic multiparty system) and states that they serve as the ground for interpretation of the Constitution. For an English translation of the Croatian Constitution see: https://www.constituteproject.org/constitution/Croatia_2013?lang=en, last accessed April 5th 2019.
[4] Paragraphs 41.1 – 45 of the ruling.
[5] Par. 45.1 of the ruling.
[6] Par. 46 of the ruling. Emphasis added.
[7] Here, the Constitutional Court stressed that those new systems “are based on other (subsequently developed and accepted – note Dj. G.) values and principles, and (that – note Dj. G.) they are aligned with the Constitution and international standards as well as with advances in science and medicine, which are complemented with changes in the systems of health care, education, and social policy” (see par. 49.1 of the ruling).
[8] Par. 50 of the ruling.
[9] Ibid. Emphasis added.
[10] Early April 2019.
Comments