Proportionality in the Constitutional Review of Abortion Law

Abstract

Courts are increasingly becoming more sensitive to the need for principled approaches that resolve constitutional conflicts through a reasoned balance of rights. As the shape of constitutional abortion judgments shift, courts are trying different frameworks through which to articulate their reasoning. This article analyzes judicial methodology in constitutional abortion law, focusing on proportionality as a reasoned analytical framework, introduced by the German Constitutional Court in 1975 and refined in more recent European and Latin American judgements, that allows courts to move beyond the abstract, intuitive decision-making that characterized abortion judgments of the past. Proportionality brings into consideration substantive issues and empirical data too often neglected in abortion law adjudication, requiring judges to assess not merely the rationale, but also (i) the effectiveness of criminalization in protecting unborn life, (ii) the availability of alternative measures of protection and (iii) to account for the sacrifice criminalization demands of women against its alleged benefits. Using this analytical method, judges assess laws according to the three key standards of suitability, necessity and strict proportionality. Proportional analysis of constitutional questions usually results in support for approaches to abortion regulation outside of criminal law. In the final part of the article, the author explains how courts have used proportionality to reconcile positive duties to protect unborn life with negative duties to abstain from interfering with women’s rights.