aujourd'hui ne fais à personne ce ke tu n'aimerais pas kon te fasse demain. je ne suis pas d'accord, il fallait écrire : aujourd'hui ne fais à personne ce ke tu n'aimerais pas kon te fasse aujourd'hui et non demain. pourquoi il faut attendre un jour? C'est injuste, c'est comme pour l'avortement. Il fallait que je la place cette histoire d'avortement.
Kaine ya makane, comme promis voici mon essay si ça t'intéresse toujours, désolée pour le jargon juridique anglais
C'est surtout une critique du raisonnement peu courageux des juges, et du fait qu'ils n'ont pas osé aller jusqu'au bout de leur arguments... Mais pour le fond du problème, vous savez déjà ce que j'en pense...
The right to terminate pregnangy has been the subject of a wide controversy especially since the last Nineteenth Century, and the judiciary has been faced with very powerful arguments, ranging from the personal liberty of the women, to the ethical problems posed by abortion.
It is interesting to see on which basis this right has been recognized. One would assume that the right to or prohibition of abortion would have been decided under the “right to life”, but in Europe like in the US, the debate was founded on the concept of the right to privacy.
There is no notion of a “right to life” in the US Constitution, and even the right to respect for private life is not explicit. In the leading case on abortion, Roe v. Wade, the Court reaffirmed a finding that the right to privacy is contained in the 14th Amendment’s concept of personal liberty, and on the 9th Amendment’s reservation of rights to the people. It expressed the view that this emcompasses the right to abortion, therefore already dismissing any claim that this issue should be considered in the light of the potentiality of life of the fetus. From the very beginning of the judgment, the approach is that the fetus is not a living being in itself, but is part of the body of the pregnant woman, who therefore has the right to decide whether she wants to keep it or not. The judges thus decided that this is a matter of bodily integrity, having regard to the detriment suffered by a woman in case of an unwanted pregancy. The Supreme Court decided that neither the Constitution nor Common Law could be said to define exactly what a “person” is, or to have conferred rights to the unborn. The rest of the decision is, in my view, not consistent with this finding. The judges suddenly shift from the personal liberty argument, to the interest of state in protecting potential life. “The pregnant woman can not be isolated in her privacy. She carries an embryo and, later, a fetus.” They held that the right to abortion is not an absolute one, in that after a certain stage in pregnancy, the protection of the fetus outweighs the right to privacy, and that the state is entitled to prohibit the termination of pregnancy as soon as the fetus is viable (except when it endangers the health of the mother). Moreover, the state may also regulate abortion after approximately the first trimester of pregnancy (which corresponds to the “quickening” period). This seems contradictory in comparison with the right to privacy, which entails the belonging of the fetus to the body of the woman. If this argument was completely respected, the woman should have the right to do whatever she wants until the moment of birth, when the baby and her form two different entities in law. The judges seem aware of this contradiction when they stress the concept of “potentiality of life”, though it seems unclear why this has been labelled “legitimate interest of the state”. This actually shows that moral arguments have been given more weight than the actual legal instruments relating to abortion. In my view this judgment achieved a very good balance between the different interests at stake, but it failed to justify the moral considerations in legal terms. The central holding of Roe that “viability marks the earliest point at which the State’s interest in fetal life is constitutionaly adequate to jutify a legislative ban” has later been strongly reaffirmed in Planned Parenthood v. Casey, though the Supreme Court weakened its others findings. They added a “undue burden standard” to assess the substantiality of obstacles placed on the path of a woman seeking abortion before viability, therefore rejecting the “first semester” framework of Roe. Thus the interest of the state in protecting potential life is extended, and weakens the women’s right to freely decide on matters relating to their bodily integrity. Pressures on women are thus permitted, and the parental consent provision was held valid because of the state’s concern that immaturity of young citizens may impair their ability to exercise their rights freely (which is somewhat appalling in a country where a 12-year-old is allowed to use weapons). However, the court strengthened the central holding in Roe, contending that even if viability in the 90s may occur earlier than in 70s thanks to medical progress, the soundness of this finding could not be questioned since it has never been a matter of time, but a matter of pregnancy stage.
The ECHR used a rather “hands-off” approach as to the right to abortion. It has always refused to decide whether the fetus qualified as every “person” whose right to life is protected under Article 2 and held that even if it were entitled to some protection, the woman would still retain the right to terminate pregnancy at an early stage, in order to protect her physical or mental health. The right to terminate pregnancy has been recognized under the convention right to privacy though (Bruggeman v. Germany). The approach is close to the Roe decision, the Court recognizing that matters relating to control of fertility and bodily integrity lie in the domain of private decision-making. Therefore, claims from fathers that they have their say in the matter have always been dismissed (Paton v. UK, Boso v. Italy). However this right is not absolute, and Government may lawfully intervene to restrict the availability of abortion. Sticking to its hands-off approach, the ECHR has almost never struck down a Member State’s abortion legislation, except in the case of Open Door and Dublin Well Women v. Ireland. The Court held that such a restricive legislation, prohibiting counsellors to advise women as to the availability of abortion in Great Britain, violated their right to privacy, by being “overbroad and disproportionate”. However it is regrettable that, because of its refusal to rule on the personality of the fetus, the Court was not in a position to challenge the ban on abortion in Ireland. It is somewhat surprising that the “Old Europe” is more reluctant than the very Christian America to decide on matters such as these. It is understandable though, that in order to promote the ECHR and keeping its legitimity, the Court must respect the margin of appreciation of the Member States, and not to adopt too “extreme” or disturbing positions. One could note that the right to privacy relating to abortion, is the right to which the Court has afforded the widest state margin of appreciation ever, since it could range from a complete prohibition, to the total liberty of women to terminate pregnancy whenever they so wish.
In the UK and under the Human Rights Act 1998, the courts are not strictly bound by Strasbourg jurisprudence, though its authority is very strong. Nonetheless they are able, and implicitely authorized by the non-interventionism of the ECHR, to take more specific measures. The provisions of the Abortion Act 1967 have been disputed as imposing restrictions which are “unnecessary in a democratic society”. For instance, the requirement that the women has to find two doctors to perform the abortion, and also the very fact that only the doctor may decide whether a woman is entitled to abortion or not. Some commentators objected that the decision to have a sexual intercourse not being decided by doctors, then they should not be the ones to decide whether they can be parents or not . Courts have not yet been faced with the dilemma, but such a debate is very likely to arise in the near future. Hopefully they will be as courageous as the US Supreme Court, and will provide a better appraisal of the issues relating to the fetus itself than the ECHR did.
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