Why does the inclusion of abortion in the Charter of Fundamental Rights violate the legal principles of the European Union?

Le 16 March 2023, par Tonio Borg

The European Union has developed so much in the past sixty-five years, that we sometimes forget the historical and political origins of this unique institution which has staved war and conflicts for more than half a century and launched a sui generis Union which seeks greater union, established a single market, guaranteed the four freedoms of movement of persons, capital services and goods to 500 million people, but also protects through the subsidiarity principle the sovereignty of its members. First of all, let us have a look at its founding fathers namely Monnet, Schuman, Adenauer and De Gasperi.

The founding fathers

Jean Monnet was born in a strongly Catholic family. His sister was founder of Action Catholique, to which Monnet contributed financially. Monnet incidentally a civil servant helped in the drafting by French Foreign Minister Schumann of the Schuman Declaration of 1950. Robert Schuman was not only a practising Catholic but in 2021 was declared Venerable by the Catholic Church. The Vatican described Schuman as a man of Catholic faith : “Behind the action of the public man, there was the interiority of the man who lived the sacraments, who, when he could, would take to an abbey, who would reflect on the sacred Word before finding the shape of his political words.” Alcide de Gasperi another founding father, was a practicing Catholic, He has been declared a “servant of God” by the Catholic Church, an early stage in the beautification process, an honour afforded few other twentieth century politicians[1]. He wanted to be remembered as a “man of faith” rather than as a “man of power”. Then, Konrad Adenauer was a devout Roman Catholic and member of the Deutsche Zentrumspartei, before the War. [1] Joan Carroll Cruz, Saintly Men of Modern Times (Huntington, IN: Our Sunday Visitor Publishing, 2003, 30.

The twelve stars

The blue background of the EU flag resembles the sky and symbolises truth and the intellect. It is also the colour traditionally used to represent the Virgin Mary. In many paintings of the Virgin Mary as Stella Maris she is crowned with a circle of twelve stars. In 1987, following the adoption of the flag by the EC, Arsène Heitz (1908–1989), one of the designers who had submitted proposals for the flag’s design, suggested a religious inspiration for it. He claimed that the circle of stars was based on the iconographic tradition of showing the Blessed Virgin Mary as the Woman of the Apocalypse, wearing a “crown of twelve stars”[1]. [1] Carlo Curti Gialdino, I Simboli dell’Unione europea, Bandiera – Inno – Motto – Moneta – Giornata. Roma: Istituto Poligrafico e Zecca dello Stato S.p.A., 2005., p. 80–85.

Be that as it may, it is difficult to understand how the EU can ever consider the destruction of human embryos and abortion as a fundamental right. By fundamental right one intends a right so basic that no member state can reject or refuse to accept such as the right to life or freedom of expression. To this initiative of considering abortion as a fundamental right within the EU, there are several legal, political, ethical, historical and EU Treaty objections.

Legal objections

Let us start with the legal objections. No international human rights instrument in the world has ever recognized abortion as a fundamental human right. Indeed, the only human rights international treaty which deals with abortion in an indirect way states exactly the opposite. Article 4 of the American Convention on Human Rights affirms that “Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception”. In decades of jurisprudence of the European Court of Human Rights attempts have been made to interpret the right to privacy as one referring to the right to terminate one own pregnancy. The Court has refused such interpretation and has allowed member states to regulate the matter. Prohibiting abortion or allowing it does not breach the European Convention. Indeed, in one case [1], the European Court did not even accept that the right to marry included the right to divorce and marry a second time, let alone terminating a pregnancy. [1] Johnston v. Ireland (ECHR), (18 December 1986).

As to the EU legal aspect, first of all, the proposal goes against the very idea of a “federation of sovereign states “as the founding fathers wished it to be. The Treaties can only be changed by unanimity, and there is no power or jurisdiction belonging to any EU institution to promote abortion. It is a matter left exclusively in the hands of the member states on the basis of the principle of subsidiarity. The entire fabric of the European Union is based on three pillars (a) matters which are exclusively in the hands of the EU centre such as competition within the single market (b) matters which are the co-responsibility of the EP and the Council of Ministers on the basis of legislation proposed exclusively by the Commission, and (c) matters which are exclusively in the hands of the member states; abortion euthanasia according to the Treaties are the full and exclusive responsibility of the member states.

From the historical side, a proposal to force member states to accept abortion goes also against the thinking and vision of the founding fathers; not only because when the EU was founded at that time even the matters within the jurisdiction of the law-making bodies required unanimity, but also because the founding fathers, while in favour of pooling the sovereignty of member states for the common European good, never intended the EU as an institution which would absorb completely the sovereignty of its members.

The subsidiarity principle

And finally considering the strong Catholic convictions of the EU founding fathers it would be absurd to think that they ever predicted or envisaged abortion to be a fundamental right within the EU. On the contrary, they considered the right to life and other basic human rights to be essential for the integration of Europe, which explains why all the founding members of the EU were also founding fathers of the Strasbourg-based Council of Europe, whose greatest achievement has been the drafting of the European Convention on Human Rights (ECHR) and a regional enforcement mechanism to politically oblige member states to observe fundamental rights. Abortion is not one of them.

The attempts to introduce a fundamental, right to abortion of course have created political pressure to change the current method of decision making. Considering the current political realities in the member states, I do not think that the Treaties can be amended in the foreseeable future to reduce the subsidiarity principle and take away from the states their exclusive competence which they now enjoy in several areas including abortion. Besides, I find it ironic that the French proposal for the introduction of a fundamental right to abortion in the EU which would mean that no member state can refuse to introduce such right, was then not even approved by the legislature of the country proposing it namely the French Senate [1]! [1] A vote by the French Senate on February 1, 2023, however, adopted an amendment favorable to the inclusion of abortion in the Constitution as a “freedom”, but not as a “right” (Translator’s note).

However, the Resolution of the European Parliament last July 7th was intended to increase the pressure in an area where the EU institutions do not have any competence. The Resolution runs counter to the subsidiarity principle. While proposing an amendment to the EU Charter of Human Rights to include abortion as a fundamental human right, it criticizes the reversal of the Roe v Wade decision, which incidentally puts the United States,as regards abortion, on the same position as the one legally prevailing in the EU, as crystallized by the European Court of Human Rights, namely that each state of the USA and each member state of the EU, are entitled to decide themselves the matter of whether to allow abortion or not.

A form of dictatorship ?

There are also other ways of imposing disabilities and disadvantages on those who do not share this view. During my hearing to be nominated as European Commissioner in November 2012, I faced a barrage of questions on abortion and my public views as a practising Catholic against abortion, even though as a Commissioner I had no right under EU law either to oppose or promote abortion within the EU. While sticking to my views, I underlined the fact that the Treaties which had been ratified by the EP itself did not grant any power on such matters to the Commission. So the only reason why this issue was raised during my hearing was to send the message that no practising Catholic can be appointed European Commissioner. The Catechism of the Catholic Church states that: “Direct abortion, that is to say, abortion willed either as an end or a means, is gravely contrary to the moral law”. This means that a practicing Catholic cannot be in favour of abortion. However, if being a practising Catholic excludes oneself from becoming an EU commissioner, this is a form of dictatorship of the majority over millions of European Catholics, who just because they hold a particular faith are excluded from important positions in the EU, not because they are not competent, efficient well prepared or effective, but just because they do not share the EP’s view on a matter which is not within the EP ‘s power, or for that matter any other EU institution, to decide!

The words of John F Kennedy during the 1960 Presidential Campaign when faced with opposition from some quarters that a Catholic would not be fit to occupy the position of President of a predominantly Protestant United States, spring to my mind. In his famous Houston speech on September 1960 he stated: “If this election is decided on the basis that 40 million Americans lost their chance of being President on the day they were baptized, then it is the whole nation that will be the loser, in the eyes of Catholics and non-Catholics around the world, in the eyes of history, and in the eyes of our own people.” What would the position be for instance if one were to follow this opposition to persons practising their faith, of a practicing Muslim who is proposed as European Commissioner? To quote again from Kenndy’s speech: “For while this year it may be a Catholic against whom the finger of suspicion is pointed, in other years it has been, and may or a Quaker — or a Unitarian — or a Baptist.”

The refusal of the law-makers in the EU to make even the slightest reference to the historical fact that Europe was built on Christian values when the Lisbon Treaty was being discussed, and the prohibition of anything smacking of Christian culture including the setting up of cribs in Christmastime at the EU premises, is a negation of our DNA, history and traditions. The European Union was born out of unity in diversity. Introducing elements which are controversial and trying to put political pressure to impose them on all member states goes against the spirit and intentions of the founding fathers. Indeed Schuman, De Gasperi and Adenauer must be turning in their graves witnessing the current trends and developments in the European Union !

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[1] Joan Carroll Cruz, Saintly Men of Modern Times (Huntington, IN: Our Sunday Visitor Publishing, 2003, 30.

[2] Carlo Curti Gialdino, I Simboli dell’Unione europea, Bandiera – Inno – Motto – Moneta – Giornata. Roma: Istituto Poligrafico e Zecca dello Stato S.p.A., 2005., p. 80–85.

[3] Johnston v. Ireland (ECHR), (18 December 1986).

[4] Un vote du Sénat français le 1^er février 2023 a toutefois adopté un amendement favorable à l’inscription de l’avortement dans la Constitution comme une « liberté », mais non comme un « droit » (Ndt).