Case 64/1991 (XII. 17) AB

Two groups of petitioners, one pro-life and the other pro-choice, challenged provisions regulating abortion in Article 29(4) of the Health Act, Decree 76/1988. (XI.3.) MT, and its implementing Decree 15/1988. (XII. 15) SZEM. Article 29(4) established that abortion would be permitted in circumstances outlined under the regulations. The implementing regulations in Decree 15/1988 provided that women under 35 who had fewer than two children could seek abortions to preserve their life or health.

The first group of petitioners contested the constitutionality of these enactments on the grounds that life began at conception, and therefore abortion affected the right to life, right to health, and protection of children under the Hungarian Constitution. The petitioners argued that under Article 8(2) of the Constitution, such restriction of rights could take place only through statute, and not through regulations. They also argued that abortion was contrary to other family, civil and criminal laws, and that it therefore breached Article 35(2) of the Constitution, which states that government decrees may not conflict with the law. Finally, the Petitioners argued that it was discriminatory not to accord the fetus similar protection for its life as any other human life, that abortion was contrary to the right to legal capacity for everyone, and that by failing to provide doctors the choice to refuse to perform an abortion, the Decrees violated their right to freedom of conscience.

The second group of petitioners also alleged that abortion could not be regulated by decree under Article 8(2) of the Constitution, but argued for fewer restrictions on abortion. The Petitioners argued that the right to decide termination of a pregnancy was part of the right to human dignity, and that any restriction on this right could not be imposed merely by governmental or ministerial decree. Further, the decree was unconstitutional as provisions that allowed abortions only for women under the age of 35 or women who had given birth to two or fewer children were contrary to Article 16(1)(e) of Convention on the Elimination of All Forms of Discrimination against Women (the right of women to family planning) and Article 70/A(1) and (2) of the Constitution (freedom from discrimination). The Petitioners contended that the lack of provision for legal abortions in statute was unconstitutional, as the decrees allowing for abortion in limited circumstances were merely regulations, while otherwise the Health Act of 1972 prohibited abortion in all circumstances.

The Court noted that under the Hungarian Constitution, any laws related to a direct and significant restriction of a fundamental human rights were required to be passed by statute (as opposed to decree, as several of the relevant abortion-related regulations were). The Court found that any regulation on abortion implicated the question of whether a fetus could be considered a subject of law, which in turn was directly tied to the question of the fetus’s right to life and the woman’s right to self-determination. Therefore, because abortion regulations were directly tied to potential restrictions on fundamental rights, the Court held that they must be passed by statute and thereby repealed the relevant decrees and legislation were not statutory.

The Court also considered the strength of a woman’s right to self-determination and found that “the possibility of regulations that narrow the scope or limit the availability of abortion will directly and substantially affect the right of the mother to self-determination.” [Sec. C(3)(b)] The Court noted, however, that the State had the obligation to “protect human life and its condition of existence in general” such that, if the fetus was not considered a legal subject, the State might still have certain duties to “secure the conditions of life”. [Sec. C(3)(c)] Such State obligations “may be restricted by the mother’s right to health or the right to self-determination.” [Sec. C(3)(c)]  If the rights of the fetus to its existence were therefore balanced against the woman’s rights to health and self-determination, abortion might be made conditional and there would “necessarily be a distinction between pregnant women who meet the criteria, and those who do not.”[Sec. C(3)(e)].

The Court determined, however, that if a fetus was a legal subject, then it would have the right to life which would generally trump the woman’s right to self-determination (though, in exceptional cases, restrictions on the fetus’s right to life might apply).  The main issue, therefore, was whether a fetus was legally a human being with the corresponding rights to life and dignity. Here, the Court noted that such question could not be resolved by interpreting the Constitution and was more rightly a question for the legislature.

Despite refusing to determine whether a fetus was legally a human being, the Court did lay down certain considerations for the legislature to consider when it took up the question itself. Namely, the Court noted two conflicting developments: first, that “abortion has reached a historically unprecedented magnitude having become one of the main forms of contraception, while its directly associated health risks have become insignificant” which may have neutralized the negative moral evaluation of abortion. [Sec. D(2)(d)] Second, as a result of scientific and technological progress, birth was no longer the obvious line separating a fetus from a human life, leading to the individualization of the fetus. Ultimately, the Court stated that “determination of why the legal recognition of the fetus as a human person commences at a given certain moment, and not before, cannot be supported by any principle.”  [Sec. D(2)(d)]

With respect to the question of whether the legislation unconstitutionally omitted any provision guaranteeing that any health care professionals could conscientiously objected to provide abortion services, the Court held that that the legislature was not required to provide an explicit exemption for healthcare providers as the general rights guaranteeing freedom of conscience in existence already were found to be sufficient protection. The State, however, was obliged to create a work environment where health care professionals were not forced to conduct abortions against his/her conscience.

In sum, the Court held that the applicable rules governing abortion by regulation were unconstitutional.

“Abortion is always a disposition over the life of the fetus, which invites legal classification. The regulation of abortion “applies to” the right to life of the fetus – which includes an initial question of whether the fetus can be considered a subject of law – and such regulation undoubtedly also ‘applies to’ the legal capacity of the fetus.” Section C(3)

“It is not readily apparent why the State’s interest in a pregnancy which has progressed beyond the third month is more compelling than its interest in protecting a fetus less than three months old, which if protected would also develop into a viable being. Since the fetus’s human potential is constant throughout the pregnancy, on what basis can one grade the intensity of protection afforded to it?” Section C(3)(c)

“However, with respect to abortion, the question is not whether the fundamental rights shaping the uniquely human legal status are unconditional or subject to limitations, but concerns the preliminary question of whether the fetus is a human person, and thus capable of becoming a subject of these rights.” Section D(2)(c)

“If the law at all extends human status prior to birth, and provided it maintains its existing principles, then the fetus must be recognized as a legal subject irrespective of its stage of development. This follows from the fact that the law does not distinguish, and cannot, while remaining within this conceptual framework, between those born on the basis of physical state, mental functioning or by any similar criteria.” Section D(2)(d)

An outright ban on abortion would not be constitutional, for this would completely negate the mother’s right to self-determination (and her right to health as well). Such a prohibition does not follow from the Constitution, given that in this scenario, the fetus does not have the right to life according to Article 54. It would likewise be unconstitutional if regulations would favor exclusively the mother’s right to self-determination. The state has a duty to protect human life from the moment of its inception, and hence the right to self-determination cannot prevail alone even in the earliest stages of pregnancy.” Section F(2)

“The answer to the question of where the law should draw the line between the unconstitutional extremes of a total ban on abortions and an unrestricted availability of abortions and what indications would be required is the responsibility of and falls within the competence of the legislature.” Section F(2)