The Right to Abortion – Between the Need for Protection at the European Level and Respect for the Constitutional Traditions of the Member States

Abstract

This article examines the regulation of abortion within the European legal order, highlighting the interaction between the jurisprudence of the European Court of Human Rights (ECHR), the Court of Justice of the European Union (CJEU), and the concept of national constitutional identity. While no explicit right to abortion is enshrined at the EU level, the ECHR has developed an extensive jurisprudence based on Article 8 of the Convention (right to private life), granting states a wide margin of appreciation. At the same time, constitutional identity allows Member States to preserve national traditions, creating tensions with the EU’s common values enshrined in Article 2 TEU. This study analyses relevant case law and doctrinal perspectives, illustrating how abortion regulation exemplifies the dialectic between the preservation of constitutional traditions and the need for uniform protection at the EU level.