The symbolic or substantive function of constitutionalisation: reflecting the fundamental nature of rights

Theories of constitutionalism distinguish between the formal sense of the constitution (a set of rules that cannot be modified by regular legislation) and the substantive sense of the constitution (the most essential rules safeguarding individual and collective self-determination – including fundamental rights). The identification of these ‘most essential rules’ deserving of constitutionalisation in the formal sense falls under the authority of the constituent power. While some scholars consider that constitutionalism is only about the procedural dimension, other theories of constitutionalism offer a more substantive content.Footnote ²⁴ Departing from these theories, we identify in the following sections core substantive principles of constitutionalism and examine how they may ground the fundamental nature of abortion rights.

Abortion rights and, more broadly, reproductive rights are frequently built upon the idea of liberty or individual freedom, one of the very foundations of modern constitutionalism. Landmark cases such as Roe (US) and Morgentaler (Canada) were rooted in a vision of personal liberty. Departing from the latter case, however, Lessard argues that reconception of personal liberty is needed to accord with the premises of feminist writings, entailing ‘a different view of the state, one in which state power is the mediator and facilitator of rights rather than antithetical to freedom’ and one in which ‘rights are no longer abstractly defined spheres of non-interference but rather are contingent on situation and relationship’. This ‘shift in the view of the self as embedded in social relations rather than abstract and unencumbered’ requires that ‘particular and “private” experiences of disempowerment within the inviolable spheres of classical legal consciousness and at the hands of private power, be given relevance in the determination of rights’.Footnote ²⁵

Others argue that abortion rights are inherent to equality. Cook and Dickens consider that ‘[t]he power a state claims to conscript women to give their bodies against their will to deliver children at its legal demand confirms that women are only lesser or second-class citizens’.Footnote ²⁶ For them, abortion-related discrimination on grounds of sex and gender is often linked with other unjustified distinctions in treatment on other grounds (race, ethnicity, social status, age) – a situation of intersectional discrimination which ‘illustrates the pervasive violation of the right to equality that creates the subordinate status that many women occupy in their families, communities, wider societies, and legal systems’.Footnote ²⁷ From this perspective, dtates may be considered to discriminate against women if, without objective and reasonable justification, they ‘fail to treat women according to their different reproductive function’.Footnote ²⁸ Despite the potential of the equality argument, in most jurisdictions abortion faces greater difficulty in being viewed by the judiciary as an issue of equality than as a question of liberty or privacy.Footnote ²⁹

Building on the vision that reproductive rights are an essential aspect of liberty and/or of equality, some scholars configure these rights as democratic rights, intrinsically linked to citizenship and the social contract.Footnote ³⁰ According to Hennette-Vauchez, Roman and Slama, most constitutions’ silence on issues of reproduction (including abortion) paradoxically neglects the fact that the existence of the political community – which is founded by the social contract formalised through the Constitution – is itself highly dependent on the reproductive work carried out by women.Footnote ³¹ Therefore, these scholars view the insertion of matters of reproduction (including abortion) into the Constitution as a way to break with the gendered order of the modern constitutionalist paradigm. Along the same lines of reasoning, some feminist scholars seem to consider reproductive rights so essential that, in their absence, one could not rightfully speak of a constituent power. We can find traces of this way of thinking in the writings of Hester Lessard and Joanna Erdman, who ‘link the private right of reproductive freedom to the heart of the democratic political tradition’, seeing it as ‘a prerequisite of legitimate government no less than the traditional civil and political rights of man’.Footnote ³² Accordingly, restrictions on reproductive self-determination may not solely be perceived as violations of equality or of liberty, but also of (a lack of) citizenship rights. This political understanding of abortion rights has far-reaching consequences: instead of thinking about abortion and reproductive liberty as questions excluded from the state and therefore privatised, thinking about abortion rights as democratic rights implies thinking about those rights ‘as a collective struggle in society’.Footnote ³³ In the same line of reasoning, the gaps in the majority of the world’s constitutions with regard to reproductive rights (including abortion) may be considered ‘products of times … when women lacked or lack the political power of full citizenship to overcome patriarchal governments’.Footnote ³⁴ It is correctly argued that ‘abortion is safest where women are more respected as citizens of the countries in which they live’.Footnote ³⁵

The foregoing discussion serves to underline that reproductive rights are not mere trivial rights whose constitutional inclusion can be dismissed easily by the argument of constitutional over-inclusiveness or the absence of tangible political treats in a country. Instead, reproductive rights bear an essential relationship to core substantive principles of constitutionalism such as equality, liberty and citizenship, which support, from a substantive and symbolically affirmative point of view, their inclusion in the constitutional catalogue of fundamental rights.

The instrumental or procedural function of constitutionalisation: strengthening the legal protection level of rights

A constitution also fulfils instrumental procedural functions.Footnote ³⁶ Constitutionalisation of fundamental rights implies thinking about rights and freedoms as ‘values constituting subjective rights intended to be disseminated throughout the legal order by means of constitutionality control mechanisms’Footnote ³⁷ and as defining ‘constitutional axiology that is intended to be imposed on all constituted powers’.Footnote ³⁸ This function stands at the centre of argumentation in favour of the constitutionalisation of a right to abortion: the idea is to enshrine an overriding right/freedom that all subordinate powers must uphold. In the following paragraphs we critically analyse a key challenge raised to this procedural argument in European settings, namely, that abortion rights are already sufficiently protected by fundamental constitutional and/or supranational rights standards. To do so, we examine the presence of these overriding fundamental rights in the national and supranational context of Europe and the manner in which prominent courts have interpreted and applied these standards to the question of abortion. This enables us to develop a perspective on whether an explicit constitutional right to abortion would add any value, in the procedural sense, in terms of strengthening abortion rights.

In contrast to other regions in the world, the role of constitutional law in establishing abortion rights has been relatively limited in Europe.Footnote ³⁹ Most abortion ‘rights’ in the European context stem from statutory abortion law or are carved out as exceptions to criminal law prohibitions. While it is not uncommon for the domestic constitutional courts of European states to declare legal frameworks regulating abortion in conformity with the constitutions of those states, these do not necessarily establish an explicit constitutional right to abortion. Moreover, explicit references to abortion in written constitutions were entirely absent from European constitutions until France adopted constitutional reform in March 2024. Some European constitutions, however, did already recognise rights to sexual and/or reproductive decision-making or health – rights that may include abortion but do not always translate into concrete protections for abortion.Footnote ⁴⁰ Particular mention should be made of the 1974 Yugoslav Constitution, which was the first to recognise a right to family planning. After the fall of communism, several Eastern European countries retained similar provisions in their constitutions. A reference to reproductive decision-making is, for instance, still enshrined in the Slovenian Constitution, which determines that ‘Everyone shall be free to decide whether to bear children’. Notwithstanding the importance of these rare references to reproductive health or decision-making in European constitutions, none of these effectively recognise a duty to protect or fulfil abortion services as a component of the right to sexual and reproductive health.Footnote ⁴¹

Other, more broad fundamental rights that are commonly present in European constitutions may be linked to abortion by means of judicial interpretation, such as the right to equality, autonomy, privacy, integrity, dignity, etc. However, the extent to which fundamental rights are considered to ground abortion rights by the domestic judiciary is highly dependent on the composition of the court and judicial approaches to interpretation. Moreover, supranational case law may limit or instruct the interpretation of core fundamental rights at the domestic level. More specifically, in interpreting the ECHR, the European Court of Human Rights has repeatedly held that, while abortion laws and restrictions touch upon the sphere of the right to private life, the right to private life does not contain a right to abortion.Footnote ⁴² In A, B, C v Ireland and more recently in M.L. v Poland, the Court reiterated its long-held position that ‘Article 8 cannot be interpreted as meaning that pregnancy and termination pertain uniquely to the woman’s private life’, given that ‘her private life becomes closely connected with the developing foetus’.Footnote ⁴³ As pointed out in legal doctrine, it is unclear why this connection ‘should cast doubt about the private life nature of pregnancy itself’ and why the balancing between the private life right of the mother and the interests of the foetus should be differently framed than the usual balancing performed under Article 8(2) of the ECHR.Footnote ⁴⁴ After all, the Court has clearly held that the prohibition of termination of pregnancy sought for reasons of maternal health, social well-being, or foetal anomaly (which covers most reasons for abortions) constitutes an interference with privacy rights. This suggests that there may, in fact, be a right to abortion under Article 8 ECHR, although it is not an absolute right.Footnote ⁴⁵ The key question for the judiciary boils down to establishing whether the disputed abortion regulation amounts to an (un)justified interference under Article 8(2) of the ECHR.Footnote ⁴⁶ In conducting this exercise in the past, the Court has upheld some of Europe’s strictest abortion laws, finding no breach of the right to respect for private life and relying on a broad margin of appreciation for States to regulate the matter. For instance, in A, B, and C v Ireland, the Court deemed Ireland’s highly restrictive abortion law justifiable, suggesting that the alleged internal (restrictive) consensus in the country could take precedence over the European (more liberal) consensus.Footnote ⁴⁷ The Court came to this conclusion by explicit reference to ‘the lengthy, complex and sensitive debate in Ireland’ as well as the ‘profound moral values concerning the nature of life which were reflected in the stance of the majority of the Irish people against abortion’.Footnote ⁴⁸ While the absence of such deeply held views on the immorality of abortion in most European jurisdictions minimises the threat that abortion bans in these states would be upheld by the European Court of Human Rights, the level of permissible state interference with Article 8 of the ECHR remains unknowable.Footnote ⁴⁹ After all, the Court has not explicitly addressed the appropriateness of most of the substantive abortion restrictions, such as maximum gestational age limits and procedural barriers, that currently lie at the centre of many abortion debates in European jurisdictions.Footnote ⁵⁰

Bearing in mind the national legislator’s wide margin of appreciation to determine the permissibility of abortion, a similarly reserved attitude from domestic constitutional courts could, perhaps, be anticipated when faced with addressing the compatibility between regressions of abortion rights and ‘broader’ fundamental rights, such as the right to privacy, bodily integrity, autonomy, or equality. This need not, per the definition, be the case: constitutional courts may also establish a greater protection for abortion than is currently observed at the European Court of Human Rights. In fact, there are reasons to suspect that domestic constitutional courts in Europe would be less reluctant than the Strasbourg Court to find fundamental rights violations when assessing initiatives to roll back abortion rights. Unlike the European Court of Human Rights, domestic courts must not weigh in on the presence or absence of the so-called European consensus; they do not have to respect states’ sovereignty. At the same time, however, constitutional courts may feel constrained from going against democratically adopted legislation and instead opt to reproduce the hands-off approach of the European Court of Human Rights in the name of a certain approach to separation of powers.

More recently, both the US and Polish constitutional courts’ decisions on abortion served as powerful reminders of the leeway that courts possess when interpreting fundamental rights and their relationship to abortion. In the case of the US, Murray and Siegel blame judge Roberts’ Supreme Court’s enabling of a ‘jurisprudence of masculinity’ and its selective commitment to originalism. They underline the critical fact that the historical constitutional moments that were valued by the Court’s originalism were essentially moments in which women were excluded from political participation, lawmaking and public life.Footnote ⁵¹

In relation to the Polish Constitutional Tribunal’s decision to hold unconstitutional the foetal anomaly ground for abortion, criticisms revolve both around the fact that the deciding court was problematically composed and that the substance of the decision embodied judicial activism, ‘going well beyond what the Constitution explicitly says’.Footnote ⁵² In its most recent abortion case, the European Court of Human Rights weighed in solely on the argument about the composition of the Polish Court.Footnote ⁵³ The Court reiterated that the Polish Constitutional Tribunal was composed in violation of basic rule of law principles, compromising the legitimacy of the Tribunal bench that had introduced the impugned abortion restriction. The European Court of Human Rights, therefore, found that the interference with the rights of a pregnant person who was denied abortion access could not be regarded as lawful in terms of Article 8, because it had not been issued by a body compatible with the rule of law requirements. While this decision by the Strasbourg court offers crucial safeguards against potential drawbacks of abortion rights stemming from illegitimate anti-abortion courts and political bodies, the European Court of Human Rights again refrained from judging substance, i.e. the question whether the prohibition of abortion for foetal anomalies is justified under the ECHR. It also found inadmissible the claim that the denial of abortion for foetal anomaly under Polish law could amount to a form of inhuman and degrading treatment under Article 3 of the ECHR, despite convincing case details and instructive findings from the UN Human Rights Committee possibly supporting a different conclusion.Footnote ⁵⁴

These reflections on the recent US, European Court of Human Rights and Polish abortion decisions lead us to formulate a general warning about relying on judicial interpretation of supranational and constitutional fundamental rights to protect abortion rights. No interpretation of constitutional provisions is self-evident; in fact, it is rather complicated to consider that there are ‘reasonable’ and ‘unreasonable’ interpretations.Footnote ⁵⁵ Generally speaking, constitutional provisions remain resources available to their interpretersFootnote ⁵⁶ – here we endorse the interpretive scepticism that characterises all legal realist theories. According to the weak version of realism, every provision expresses several norms, and every person called upon to take a decision on the basis of a provision chooses, at the end of an act of will, the norm with which he will justify his decision.Footnote ⁵⁷ For authors who defend a strong version of realism, interpreters of constitutional provisions are not (de jure) legally obliged to interpret a provision in one way or another, as they themselves determine the legally binding meaning of a provision.Footnote ⁵⁸ In fact, it has yet to be demonstrated ‘that there are factors that compel constitutional judges to resort to specific methods of interpreting rights and freedoms’.Footnote ⁵⁹

To conclude, no constitutional provision can be given an assured meaning independently of the subsequent stages of authentic interpretation. And it has been demonstrated, especially in the US context, that certain methods of interpretation can be used in contradictory and gendered ways. Therefore, the discussion on a formal constitutionalisation of the right to abortion must be situated on the scale of maximising or minimising the possible constraint exerted, depending on the constitutional design adopted, on its future interpreter – whether judiciary, executive or legislative power. This conception of textual constraint will be our grid for analysing current or proposed constitutional provisions on abortion in the next section, which explores constitutional design pathways and challenges through the lens of a Belgian case study. We focus on Belgium, first, because the Belgian case is emblematic of the procedural and substantive issues relating to the constitutionalisation of abortion. Second, any legal scholarship on the Belgian case remains immediately relevant to policy debates, since a recent political decision on constitutional law reform in the country enabled constitutional reform of abortion-related articles in the next legislature.Footnote ⁶⁰ Finally, the Belgian case study aligns with the legal expertise of the two authors, which concerns, on the one hand, Belgian abortion law, and on the other hand, Belgian constitutional law. Despite a focus on Belgium, the case discussion entails crucial comparative law insights, underscoring the subject’s relevance to legal and policy debates in several other countries.

Background to the Belgian abortion debate and law

Belgium joined the ranks of European countries legalising abortion relatively late, with the passing of federal legislation in 1990. The Act on Termination of Pregnancy maintained abortion as a crime under the Criminal Code but listed specific grounds for lawful termination of pregnancy as an exception to criminality. Among these conditions were a 12-weekFootnote ⁶¹ abortion limit up to which abortion was allowed for a pregnant woman finding herself in a ‘state of distress’; medical grounds that permit access to abortion after that limit; a six-day waiting period; and obligatory information to be provided by health professionals prior to performing an abortion. In 2018, the ‘state of distress’ criterion was removed, and the abortion regulation moved from the Criminal Code to a separate statutory Act on Voluntary Termination of Pregnancy.Footnote ⁶² In recent years, several initiatives have been proposed to further liberalise both the procedural and temporal aspects of the Belgian abortion law. These – so-far unsuccessful – initiatives included a heavily debated parliamentary Bill seeking to extend the abortion limit from 12 to 18 weeks’ pregnancy and to shorten the waiting period from six days to 48 hours.Footnote ⁶³

The Belgian Constitutional Court has never affirmed the presence of an explicit constitutional right to abortion. In a negative sense, however, the Court has argued that the abortion laws of 1990 and 2018 do not infringe upon alleged constitutional rights of the unborn. According to the Court, the Constitution itself and relevant international treaties do not establish that human beings, from conception, are entitled to the protection guaranteed by these legal instruments in the same way as living persons.Footnote ⁶⁴ In its review of the 2018 relaxations of the abortion law, the Constitutional Court also briefly restated the position of the European Court of Human Rights that abortion ‘touches upon’ the private life of the pregnant woman, although not exclusively.Footnote ⁶⁵ This right should be weighed against competing rights and freedoms, including those of the unborn child. The Constitutional Court applied this test to the amendments brought forward by the 2018 Act on Voluntary Termination of Pregnancy, concluding that they maintain a fair balance between the fundamental rights of the pregnant woman and the ethical concerns that the state must uphold.Footnote ⁶⁶ This case law may lead some to conclude that access to abortion is already protected under the right to respect for private life, as enshrined in Article 22 of the Belgian Constitution, thereby rendering an explicit constitutional right to abortion superfluous. However, as the Constitutional Court has not been called upon to rule on the constitutionality of regressions in the law, this ultimately remains a vulnerable hypothesis.

At the time of writing, a proposal from the Ecolo-Green faction to enshrine a right to abortion in the Constitution is pending in Belgian Federal Parliament.Footnote ⁶⁷ The amendment adds a phrase to Article 22 of the Constitution containing the right to respect for privacy and family life, stating that that right comprises ‘a right to voluntary termination of pregnancy’. The proposal, which is the first of its kind in Belgium, came in direct response to the US Supreme Court decision in Dobbs.Footnote ⁶⁸ The explanatory memorandum to the proposal is centred around arguments of legal and political vulnerability of the statutory abortion legislation, reflecting the procedural-instrumental function of the Constitution.

Positioning the right in the Constitution

The question of where in the Constitution to place a right to abortion is not simply technical or an issue of aesthetics. The position of a right or freedom in the Constitution may have a considerabe impact on the constraints on judicial interpretation. In Belgian legal commentary, two main approaches to situating the right in the Constitution have been identified.Footnote ⁶⁹ The first approach is the one proposed by the pending legislative proposal, which introduces a right to voluntary termination of pregnancy as a paragraph under the right to respect for private life. In the preamble of the proposal, the positioning of the right was explicitly motivated by the intention to reflect the principles established in Article 8 of the ECHR. Precisely due to the European Court of Human Rights’ assessment of abortion laws considering the right to respect for private life, this right serves as a logical principle under which the topic of abortion could formally appear. However, lessons from constitutionalisation efforts in the US illustrate that this advantage may be a blessing in disguise. For instance, in discussing an initiative to enshrine a right to abortion in the Californian State Constitution,Footnote ⁷⁰ legal observers discerned a substantial risk that ‘the new California constitutional provision will either be interpreted by courts to have no effect, or that its underpinnings will be erased’.Footnote ⁷¹ The risk discerned by legal scholars needs to be understood in light of the Dobbs judgment, in which the federal Supreme Court repealed its earlier jurisprudence which had found a right to abortion in the (unwritten) privacy and liberty rights covered by the ‘due process’ clause of the Constitution’s Fourteenth Amendment. Indeed, while the Californian proposal clearly confirmed a right to abortion, it also read that the novel right intended ‘to further the constitutional right to privacy …’. Hence, the warning expressed here is that, when constitutional rights to abortion at the state level rely on the same foundation of privacy rights which have already been rejected by a higher Court, ‘the state constitutional protection for reproductive liberty [is] vulnerable to the same judicial reinterpretation that federal abortion doctrine … faces’.Footnote ⁷² Therefore, Macbeth and Bernal propose that the novel constitutional right to abortion better specifies the rights and limitations that the constitutional right entails.Footnote ⁷³ This is where an analogy with higher European supranational norms and jurisprudence may be discerned. As previously discussed, the European Court of Human Rights denies an explicit right to abortion and perpetuates doubt over which abortion regulations constitute an (unjustified) interference with Article 8. The constituent power risks reproducing this ambiguity when departing from the same privacy foundation as the European Court of Human Rights, unless it is able to transcend the legal ambiguity in some way (see below).

In addition to including abortion as a right under the right to respect for privacy in the Belgian Constitution, suggestions have been made to connect the right to social, economic, and cultural rights.Footnote ⁷⁴ Article 23 of the Belgian Constitution, which safeguards ‘the right to a dignified life’, non-exhaustively enumerates certain economic, social, and cultural rights. This enumeration encompasses specific rights, including the right to work, the right to social security, protection of health and of social, medical, and legal assistance, and the right to cultural and social development (Article 23, 1°-6° Constitution). Abortion regulations not only touch upon private life, but also upon the human dignity of a pregnant person’s life, her well-being, and her moral and material self-development in society. Moreover, abortion access is also frequently approached as a matter of healthcare and medical assistance.Footnote ⁷⁵ Thus, an explicit inclusion of a fundamental right to abortion in Article 23 of the Constitution appears thematically justified. Another advantage of this position is that, unlike Article 22, Article 23’s style of enumeration allows the addition of a right as specific as abortion. Moreover, if a right to abortion were enshrined in Article 23, pregnant individuals’ subjective right to abortion could still be mobilised through Article 22 of the Constitution, as currently happens. In any event, the Belgian Constitutional Court frequently reads Article 23 of the Constitution in conjunction with Article 8 ECHR, confirming the interconnectedness between the right to a dignified life and the right to respect for private life.Footnote ⁷⁶ Nevertheless, it must be added that the social, economic, and cultural rights embedded in Article 23 of the Constitution are, in principle, perceived to lack direct effect for individual rights-bearers. In this sense, the recognition of the right to abortion under Article 23 of the Belgian Constitution could be perceived inadequate by those who wish to establish an autonomous right to termination of pregnancy for the individual seeking it, and not only progressive, positive obligations for the state to realise abortion access. However, as will be addressed in the next section, it may be possible and recommended for the constituent power to specify the precise nature and content of the obligations that accompany the constitutional right under Article 23. This kind of precision would further maximise interpretative constraints on constitutional interpreters and more clearly delineate the positive obligations of the state.

Nature of the constitutional right

Right versus freedom: A debate on the projected right to abortion emerged in jurisdictions dealing with the topic, in addition to the debate on its positioning in the Constitution. In France, after the National Assembly initially approved a right to voluntary termination of pregnancy, the Senate amended this to a proposal stating that ‘(t)he law establishes the conditions under which a woman can exercise the freedom to end her pregnancy’. Notably, this ‘compromise proposal’Footnote ⁷⁷ replaced an initial right to voluntarily terminate a pregnancy, by a woman’s freedom to end her pregnancy.Footnote ⁷⁸ In terminological terms, this distinction of words could lead to particularly important consequences: the term ‘right’ implies a positive obligation that the state must do everything to implement it,Footnote ⁷⁹ whereas the term ‘freedom’ covers a less compelling and determined concept. However, as various authors have pointed out, from the point of view of legal protection and guarantees, the distinction is of little importance: there are rights that are very poorly protected and freedoms that are much better protected.Footnote ⁸⁰ The French Conseil d’État, in its opinion, considered that ‘in view of the case law of the Constitutional Council, which does not retain a different interpretation of the terms of law and liberty in this matter, the consecration of a right to resort to voluntary interruption of pregnancy would not have a different scope from the proclamation of a liberty’.Footnote ⁸¹ In his report made on behalf of the competent commission and relating to the freedom to resort to voluntary termination of pregnancy, the deputy Mr Gouffier Valente writes that:

Moreover, we observe that the chosen terminology may even intertwine, as reflected in the Michigan Constitution which recognises ‘a fundamental right to reproductive freedom’.

Despite the relatively mild impact of the distinction between right and freedom, the alternative phrasing of the French Senate has been described as deceptive.Footnote ⁸³ Indeed, not only did the new phrasing move the status from right to a guaranteed freedom; it also moved the focus of the proposal to the legislator’s authority to control, rather to its duty to protect, abortion access. The French wording ultimately chosen, and the decision to anchor it in a provision centring the competence of the legislature to delineate the freedom, are not elements that have significantly maximised the textual constraint exerted on the future interpreter of the provision.

In Belgium, the preamble to the legislative proposal seeking to amend the Constitution only briefly addresses the nature of the respective amendment. It reiterates that, in previous parliamentary initiatives, it has been the explicit aim of the Parliament to recognise a right to voluntary termination of pregnancy. The preamble subsequently refers to a quote from the parliamentary proceedings preceding the 2018 amended abortion law, which reads:

Despite the rights- and freedom-based framing of the proposed constitutional amendment, the preamble emphasises the legislator’s intention to enshrine a qualified right instead of an absolute right to abortion. This qualified nature is not surprising in itself: qualification is inherent to most fundamental rights, including to Article 22 of the Belgian Constitution that ensures everyone’s rights to privacy and family life only insofar as these have not been limited by the law. In this sense, the Belgian proposal aligns with the European Court of Human Rights’ and Belgian Constitutional Court’s approaches, leaving room for a balancing between the right to privacy and other values by the state when regulating abortion. It may, thus, be argued that this Belgian proposal does not significantly delineate constitutional interpretation beyond what is generally expected from state powers who conduct or review this balancing exercise under the right to privacy (see ‘Scope of the constitutional right’ below).

Positive versus negative obligations: The discussion on the nature of the right to abortion also requires clarity regarding the distinction between negative obligations (obligations to respect and not interfere with the exercise of rights) and positive obligations (obligations to protect the holders of fundamental rights or their interests against interference by third parties, and to fulfil, practically, the fundamental rights). Classical doctrines establish an equivalence between negative obligations and first-generation rights, and positive obligations and second-generation rights. These doctrines held for a long time that, unlike positive obligations, negative obligations are immediate: no further intervention of a legislature is needed for these obligations to deploy their effect and be enforced. In contrast, individuals generally cannot immediately rely on positive obligations ; they only have a ‘progressive’ effect.Footnote ⁸⁵

This classic approach has been fundamentally challenged in recent decades: all human rights entail negative obligations and positive obligations and, irrespective of whether it is a ‘first generation’ or ‘second generation’ right, the inclusion of a fundamental right in a constitutional or international binding text entails an obligation for the public authorities, and specifically for the legislator, to act.Footnote ⁸⁶ Moreover, certain positive obligations can have a direct effect, thereby challenging the absoluteness of the principle of non-direct effect. De Schutter, for instance, considers the distinction artificial, as the categorisation of obligations as negative or positive depends on the specific legal order and is inherently relative, reversible, and context-dependent.Footnote ⁸⁷ Ultimately, it is often the role of the judiciary to qualify an obligation arising from a right as ‘positive’ or ‘negative’, considering elements such as the context, the intention of the drafters of the norm, or its formulation.Footnote ⁸⁸

Nonetheless, the distinction between positive and negative obligations still underlies much legal reasoning. In the specific context of abortion regulations and restrictions, we note that the European Court of Human Rights has developed its case law on the basis of both positive and negative obligations. As discussed above, much leeway is granted to states to determine whether and under what circumstances they wish to interfere with the right to privacy through abortion restrictions, reflecting rather limited negative obligations. However, through its procedural reading of Article 8, the European Court of Human Rights stresses positive obligations that arise once abortion is (partially) legalised. In the latter case, the legal framework devised for this purpose should be shaped in a coherent manner to allow effective access to abortion services. We note that any interpretation of abortion laws is bound by this case law on procedural, positive obligations, regardless of whether a right to abortion is implemented in the Constitution.

In constitutionalising a right to abortion, the constituent may underline the importance of this case law and further specify the negative and positive obligations it attaches to the constitutional right. For instance, one of the earlier, French proposals guaranteed not only a right to abortion (and contraception), but also specified that the law must safeguard ‘free and effective access’ to those rights. The result of such specification is the reduction of the interpretive leeway enabled by the phrasing of the constitutional right. In addition, this phrasing better answers to the reproductive justice challenges highlighted in the initial section of this article, demanding not just abortion rights but also equitable abortion access. Specifying the obligations (positive and/or negative) implied by constitutional recognition of a right to abortion as well as these obligations’ nature (immediate or progressive, implying a direct effect or not) can be achieved either in the text or in the parliamentary proceedings.

Scope of the constitutional right

Subject of the constitutional right: An interrogation of the constitutional right’s scope benefits from being situated in a debate on maximising the possible textual constraint exerted, according to the formulation chosen, on its future interpreter. In the next sections, we explore different approaches to delineating the substantive subject and the temporal scope of the right.

Initiatives could target the act of ‘abortion’/’termination of pregnancy’ as the subject of constitutionalisation. This was the case not only in the Belgian legal proposal, but also in initiatives launched in Sweden, Norway, and France. However, a broader right or a set of related rights could also be the subject of constitutionalisation without silencing the matter of abortion. This approach has been adopted by California and Michigan, where State Constitutions now recognise the ‘right to reproductive freedom’ and list abortion as an element of that right. Legal commentary has previously emphasised the benefits of expanding the constitutional right to encompass topics beyond abortion.Footnote ⁸⁹ Although, from a political perspective, a broader right would complicate reaching a consensus, the legal principle of equality requires similar situations to be treated alike. Hence, when considering a constitutional right to abortion, it would be opportune to determine if analogies exist and whether these deserve equal fundamental protection in the Constitution. For instance, the legislator could seek to determine the potential fundamental nature of other issues related to bodily autonomy and health (e.g. euthanasia) or reproductive and sexual health (e.g. contraception). It should, nevertheless, be borne in mind that general provisions that stay silent on abortion carry a greater risk that the interpreter would not consider abortion rights under them. Specifically mentioning abortion in the written Constitution, or alternatively, in the preamble to the constitutional amendment, significantly reduces this risk. Irrespective of the approach taken, a proper definition and understanding of the subject matter (e.g. the term ‘abortion’) is needed. This is especially relevant since various definitions of the term abortion may be used in practice, law, and literature, which may entail ‘inherent’ limitations on access.Footnote ⁹⁰

Besides reflecting on the substantive act that is to be enshrined as a fundamental right in the Constitution, one must critically address who is recognised as right- or duty-bearer. The novel French constitutional right, for instance, emphasises both the legislator’s duty to delineate the conditions for abortion and the freedom guaranteed to the woman to have a voluntary abortion. With regard to the focus on the ‘woman’, we highlight that growing academic discourse underlines the importance of deploying gender-neutral language in abortion law and law in general.Footnote ⁹¹ The Belgian proposal bears a lesser risk at denying trans-, nonbinary and gender-expansive people with uteruses who are in need of an abortion, since it reads that everyone’s right to respect for private life includes a right to voluntary termination of pregnancy.Footnote ⁹²

Temporal scope of the constitutional right: In the same line of reasoning, interpretational challenges to the temporal scope of the right could emerge. Despite often going unnoticed, the Belgian Act on Voluntary Termination of Pregnancy regulates both abortion upon request and abortion on medical grounds, with the latter being permitted without end limit. The term ‘voluntary termination of pregnancy’ thus encompasses pregnancy terminations regardless of the context or timing behind the request. A pertinent question that has arisen in debates in the US is whether a constitutional recognition of abortion would, thus, endorse abortion at any point in pregnancy.Footnote ⁹³ Put differently, this raises the question whether statutory restrictions on late abortion violate the Constitution once a constitutional right to ‘voluntary termination of pregnancy’ is introduced.

Regulations that establish an absolute right to abortion regardless of timing are uncommon, although some examples exist outside of Europe.Footnote ⁹⁴ According to the hierarchy of norms, what is enshrined in a constitution takes precedence over, or guides the interpretation of, statutory abortion regulation. Hence, when the Constitution not only entails a right to abortion but also specifies conditions for access, such as maximum gestational age limits or justification grounds, these would replace the statutory abortion legislation. However, when these limitations are not incorporated in the constitutional provision, statutory legislation will qualify the right (see below). Ultimately, challenges may still be brought before the judiciary to evoke an assessment of whether statutory legislation presents a reasoned, proportional, and fair balance between competing rights and interests. Although it is likely that both the Belgian Constitutional Court and the European Court of Human Rights would uphold the legislator’s wide margin of appreciation to regulate access to abortion as the pregnancy advances, the European Court of Human Rights’ repeated calls for a ‘fair balance’ between privacy rights and competing rights and interests might hinder the complete legalisation of elective abortion up to birth, as such a law could be construed as rejecting that balance.Footnote ⁹⁵ Therefore, the claim that an unspecified constitutional right to abortion would generate or support an unlimited right to abortion regardless of timing should be nuanced in the European context. Extensions of gestational age limits on abortion, including the in Belgium proposed extension of the abortion limit from 12 to 18 weeks, are probably compatible with supranational and constitutional jurisprudence. However, this compatibility and subsequent legitimacy of gestational age limits does not depend on the presence of a constitutional right to abortion: even without a constitutional right to abortion, various time limits adopted in statutory legislation may reflect a proportional balancing.

Pathways to specify the right’s content: Applying a measure of precision in the process of constitutionalisation could mitigate the ambiguity that a constitutional right to abortion faces. This, in turn, could diminish the risk of a too narrow judicial and political interpretation of the right. To achieve this aim, several strategies can be employed.

First, the derived constituent power could tie a standstill obligation to the constitutional right to abortion. According to the Belgian Constitutional Court, this obligation ‘prohibits the competent legislator from significantly reducing, without reasonable justification, the level of protection afforded by the applicable legislation’.Footnote ⁹⁶ This course of action has the advantage, from an abortion-supportive perspective, that it allows the legislator to flexibly amend the modalities of the abortion regulation while avoiding easy, significant tightening. By obliging the legislator to provide justifications, the standstill principle helps make decision-making more informed and considered.Footnote ⁹⁷ In addition, this pathway could be useful if the legislator wishes to avoid inserting too much detail in the text of the Constitution, as the status quo of abortion access would determine the content of the right. Some of the proposals seeking to constitutionalise a right to abortion in European countries reflect the commitment to a standstill principle in their preambles. For instance, the legislative proposal adopted in the French Senate stated that it had the effect of preserving the legislative branch’s capability to regulate the matter, whilst prohibiting it from repealing or severely undermining the liberty it guarantees. In Belgium, the preamble to the legislative proposal states that ‘including the right to voluntary termination of pregnancy under article 22 of the Constitution has the benefit that it brings about a standstill with regards to the positive obligations of the State to safeguard that right’. In our view, however, the standstill effect brought about by recognising abortion as an aspect of the constitutional right to privacy should not be overestimated. After all, the Belgian Constitution’s right to (respect for) private life is not inherently or automatically characterised by a standstill obligation. If the right to abortion were to be situated under the right to privacy, it seems that legal certainty would benefit from a formal and explicit recognition of a standstill obligation accompanying the constitutional right to abortion. Certain terms in the wording of the text or parliamentary proceedings would make it possible to identify a clear standstill effect induced by the fundamental right to abortion.

Unlike Article 22 of the Constitution, the fundamental socio-economic and cultural rights embedded in Article 23 already contain a standstill obligation, which has been unanimously recognised by Belgian case law.Footnote ⁹⁸ Consequently, if a right to abortion were to be listed under Article 23, it would automatically impose a standstill duty on all matters relating to abortion access. However, the standstill effect of Article 23 is often presented as a counterweight to the lack of direct effect associated with social, economic, and cultural rights, as mentioned above. If the Belgian legislator includes the constitutional right to abortion in the list of socio-economic and cultural rights, it must consider the appropriateness of this pre-existing balance between the (lack of) direct effect and the standstill effect in the context of abortion.

Regardless of where the right to abortion and its attached standstill commitment would be situated, we note that the irreversibility characterising the standstill obligation is not absolute. Some authors who have thoroughly studied the principle suggest that it has been reduced to little more than an obligation of justification weighing on the legislator, while still authorising substantial regressions of certain rights as far as there are valid grounds for doing so in the general interest.Footnote ⁹⁹ Therefore, the legislator may also consider an alternative strategy, which is to include in the text of the constitutional article the fundamental aspects of abortion access it wishes to constitutionally protect. When these specifications are included in the text of the Constitution, all initiatives seeking to either restrict or liberalise them would be subject to the heavier constitutional amendment procedure. More detailed formulations do not necessarily contradict the spirit of the Belgian Constitution. In fact, while the original wording of the Constitution in 1831 aimed for absoluteness,Footnote ¹⁰⁰ only provisions formulated with sufficient precision have retained a near-absolute character through judicial interpretation. Hence, the more precisely rights are formulated, the less their interpretation appears to be relativised.Footnote ¹⁰¹ This specification approach is more commonly seen in US initiatives. For instance, the Michigan State Constitution meticulously outlines the substantive conditions on abortion, as well as the level of permitted state interference with the right to abortion.Footnote ¹⁰²

Although the specification approach demonstrated by the Michigan Constitution effectively mitigates the risk of statutory and judicial carve-outs of the right to abortion, it also comes with its drawbacks. First, its extensive level of detail may drastically complicate the attainment of a political consensus. Second, constitutionalisation of the substantive conditions for legal abortion sets these conditions more in stone at a time where public and political debate on their appropriateness appears to be evolving. Particularly in Belgium, the 12-week time limit on abortion remains a highly controversial topic, so that the incorporation of this limit in the constitutional text could be a red flag for some. The specification challenges would also arise when contemplating the constitutional recognition of a broader right such as a ‘right to reproductive autonomy’. Considering these pitfalls, the recognition of a standstill obligation appears to be a more realistic and suitable approach, at least to reflect certain aspects of existing abortion rights and services. Bearing in mind the relative irreversibility associated with the standstill principle, it is advised that the legislator considers which elements of current abortion access require stronger, constitutional protection, and if such protection weighs up against the described disadvantages of constitutional solidification.

In line with this strategy, one could also rely on the essence of the fundamental right – and to the related concepts of ‘core content’ or ‘substance’. As Alexy argues, ‘(t)he principled nature of constitutional rights givers raises not only to the idea that constitutional rights are limited and limitable in the light of countervailing principles, but also that their limiting and limitability is itself limited’.Footnote ¹⁰⁴ The concept of ‘substance’ is used by the European Court of Human Rights to fix the ‘limit on limits’ by identifying the inalienable elements of a fundamental right that cannot suffer restrictions.Footnote ¹⁰⁵ But, this concept of ‘substance’ or ‘hard core’ confers a great deal of interpretative freedom on those who interpret it. To overcome the problems raised in practice by the theory of ‘substance’,Footnote ¹⁰⁶ it is crucial for the constituent power to specify the core’s content material scope of the right to abortion. Within that perspective, legislators could highlight, during parliamentary proceedings or in the text, the aspects of current legal and practical abortion access that they deem crucial and irreversible for the enjoyment of the fundamental right, i.e. the core content of that right. Those aspects could then be considered as inalienable, as constitutive of the ‘essence’ of abortion right. Examples of such measures include preventing the withdrawal of funding for abortion and family planning centres, ensuring that enough providers are trained, safeguarding affordable access to services, etc.