Abortion Rights Through Consensus

Abstract The constitutions, laws, practices, and traditions of federated, federal, or national states may influence the interpretation of rights guaranteed by a federal constitution or an international convention on human rights. A few courts in the world consider a consensus or trend at one level when they interpret and apply rights guaranteed at another level. Such a consensus may then have a shaping impact on federal or human rights. This interlevel dynamic can relate to countless issues, as many rights are vaguely formulated. Abortion, for instance, can be seen in this light. The U.S. Supreme Court and the European Court of Human Rights have handed down major rulings on abortion after having conducted historical or contemporary consensus analyses. According to their current case law, they both mostly leave the field to the U.S. states and the Council of Europe’s member states, respectively. A general right to abortion seems out of both courts’ reach in the short and probably the medium term. A step-by-step approach, looking for some quite consensual abortion rights, may thus open a realistic way forward. Some abortion rights may indeed emerge over time based on a consensus or trend analysis. This evolution may—rightfully, to a certain extent—be seen as a stopgap measure. A paradigm shift remains possible, but likely involves incorporating the Equal Protection Clause in the United States and the prohibition of discrimination in Europe, as well as other rights guaranteed on one or both sides of the Atlantic Ocean, into the analysis. A more substantive, structural, and societal approach to abortion, including by courts, would undoubtedly raise the hope of the people most directly concerned by this issue. This could free them from the need to search for consensus.