Original article (in Croatian) was published on 7/3/2024; Author: Anja Vladisavljević
While France is set to become the first country to explicitly include the right to ‘voluntary termination of pregnancy’ in its Constitution, it is worth noting that the Socialist Federal Republic of Yugoslavia (SFRY) previously offered protection of similar significance, albeit in less explicit terms, within its Constitution.
Last Monday, the Eiffel Tower illuminated with the messages “My body — my choice” and “Legal abortion,” as citizens gathered to celebrate a “historic event”: the French Parliament’s decision to bolster the right to legal abortion through constitutional amendments.
In a special assembly within the Palace of Versailles, members from both houses of Parliament convened, casting their votes in overwhelming favor—780 for and 72 against—of enshrining abortion rights in the nation’s constitution. The deputies greeted the voting outcome with applause and standing ovations. Soon after, both international (1, 2, 3, 4) and Croatian (1, 2, 3, 4) media outlets extensively reported on this significant development.
“France is the first country in the world to constitutionally protect the right to abortion”. This headline represents one of the article title variations that spread across the country and around the globe on Monday.
The amendment to the French constitution marks a significant move by French authorities, providing a more robust guarantee to citizens that their reproductive rights are safeguarded. However, some media outlets, including domestic ones, have overlooked the fact that France is not the pioneer in constitutionally protecting the right to terminate a pregnancy. A portion of the media was more accurate or forthright, stating that France is the first nation whose constitution will explicitly guarantee abortion rights.
The recent vote approved the introduction of the sentence in Article 34 of the Constitution: “The law establishes the conditions under which the freedom guaranteed to women to resort to voluntary termination of pregnancy is realized”.
The government itself triumphantly pointed out on its website that this was a historic step forward, but did not resort to the slightly misleading wording that most of the media used. It indicated that France thus became the first country in the world to “explicitly mention the concept of voluntary termination of pregnancy” in its supreme law.
Yugoslavia and the ‘Free Decision to Give Birth’
The country that led the way 50 years before France in constitutionally guaranteeing the right to abortion no longer exists, yet the legacy of that segment of its law lives on in the legal frameworks of its successor states. This country is the Socialist Federal Republic of Yugoslavia, which, following World War II, transitioned from decriminalizing to legalizing abortion, culminating in the constitutional protection of pregnancy termination in 1974. Notably, Yugoslavia enshrined abortion rights in its constitution a year before France legalized the procedure, marking an interesting historical footnote.
Some sources indicate that in 1974, “Yugoslavia became the third country to constitutionally facilitate the right to abortion” (1, 2),. However, we have not been able to identify which other two countries are referenced in these sources. The quest to uncover information on constitutional abortion rights is complex, as the right to abortion might not always be explicitly named using specific terms. Instead, it might be framed as “family planning,” “deciding on the number of children,” or, in Yugoslavia’s case, “deciding on having children.” This nuance highlights the challenge in tracing the legal recognition of abortion rights across different jurisdictions.
Vida Tomsic, Secretary of the National Assembly of the Federal People’s Republic of Yugoslavia (FNRJ) and President of the Women’s Anti-Fascist Front (AFZ) of Yugoslavia, in her book “Women in the Development of Socialist Self-governing Yugoslavia” (1981), discussed the nation’s cautious approach to abortion liberalization, despite its recognition as a method of family planning. “It was considered that the complete legalization of abortion in conditions of underdevelopment of the health service and a more or less low hygiene culture would endanger the woman’s health even more and reduce her interest in prevention. Thus, the artificial termination of pregnancy was gradually liberalized, with simultaneous efforts to expand the prevention of conception as the main decision-making method”, she writes in the book.
Article 191 of the 1974 Constitution articulated the right of individuals to freely decide on childbearing, stipulating that this right could only be restricted to protect health. While this article did not explicitly mention abortion rights, unlike France’s direct approach, its broader phrasing implicitly encompassed them. Discussions were even held about making the language more specific.
Nevenka Petric, a member of the former Yugoslavian Council for Family Planning, discusses in her 1981 book, “Human Freedom, Birth Control, Self-Determination,” a proposal which states, “To realize women’s freedom, the right of a woman to terminate a pregnancy must be ensured. This right can only be limited in the interest of protecting the woman’s life and health.” However, this proposal was not adopted.
Slovenia Continues to Protect the Right to Terminate a Pregnancy Under Its Constitution
The Constitution of the Socialist Federal Republic of Yugoslavia (SFRY) established the right of individuals to make free decisions regarding childbearing. This right was incorporated into the constitutions and laws of all republics and provinces within Yugoslavia. Tomsic notes in her book, “Republican and provincial legislation primarily introduced health measures to support this new human right. Abortion was made available on request to any pregnant woman up to ten weeks of gestation. Beyond this period, a special procedure was required. Furthermore, two republics, Croatia and Slovenia, extended regulations to include access to contraception, sterilization, infertility treatments, and artificial insemination.”
While it might be overlooked that Yugoslavia’s constitution recognized the right to abortion before France, given Yugoslavia’s dissolution, the enduring legacy in Slovenia is significant. The Slovenian Women’s Lobby highlighted the historical context in response to France incorporating abortion rights into its constitution, stating, “The 1974 constitutional principle on the freedom to decide on childbearing laid the groundwork for Slovenia’s progressive legislation in 1977. The Law on Health Measures, one of the most liberal of its time in Yugoslavia and globally, facilitated the right to decide on childbearing. This law was reaffirmed in Article 55 of Slovenia’s 1991 Constitution.”
An article in the Slovenian Constitution asserts that the decision regarding childbirth is a matter of personal freedom, stating, “the state shall facilitate the exercise of this freedom and create conditions that enable parents to make informed decisions about having children.”
Despite some interpretations by media outlets aligned with Slovenia’s right wing suggesting otherwise, the current government affirms that Article 55 of the Slovenian Constitution explicitly encompasses the right to abortion. In response to the March for Life, an event organized by abortion rights opponents in Ljubljana last October, the Ministry of Labour, Family, Social Welfare, and Equal Opportunities issued a statement. It underscored that the right to terminate a pregnancy is a fundamental civil right enshrined in the Constitution.
The Ministry’s statement emphasized, “In the Ministry, we firmly stand on the side of the right to abortion. The right to abortion is not only the right to a medical procedure, but in its essence is the right to self-determination, to bodily autonomy and to the possibility of deciding one’s own future. This is a right that women have fought for for decades. The right and access to a safe termination of pregnancy is a civilizational achievement that enables many women to make a choice in one of the key life decisions and is guaranteed by the Constitution of the Republic of Slovenia, Article 55. It is an achievement that primarily recognizes the freedom, autonomy, integrity and dignity of every woman. In a world where women are still fighting for equality, it is imperative to defend and preserve these rights.”
Despite constitutional protections, Slovenian activists have identified areas for improvement in the practical application of reproductive rights. Last year, the Institut 8. Marec raised concerns that mandatory health insurance only covers 80 percent of the costs associated with elective abortions. This partial coverage, activists argue, undermines the constitutional guarantee allowing individuals to make free decisions about childbearing.
Similarly, Serbia’s Constitution, adopted in 2006, contains provisions akin to those of the Socialist Federal Republic of Yugoslavia (SFRY), affirming reproductive rights. Article 63 of the Constitution of the Republic of Serbia explicitly states, “Everyone has the right to freely decide on the birth of children. The Republic of Serbia encourages parents to have children and supports them in this endeavor.” However, legal experts have expressed concerns regarding the potential ambiguity of this language. Sofija Mandic, a lawyer, highlighted to the BBC the issue that the term “everyone” is currently understood to encompass women’s rights. However, she warns of the potential for future interpretations that could diverge from this understanding, posing challenges to the right to choose.
Croatia Anticipates Amendments to the Law
Unlike Slovenia and Serbia, the Republic of Croatia’s 1990 Constitution omits the provision concerning the freedom to decide on childbirth. However, the Law on Health Measures for Exercise of the Right to Free Decision on Childbirth, enacted in 1978 within the former state, remains effective. This law designates the termination of pregnancy as a medical procedure available up to ten weeks after conception, requiring a commission’s approval thereafter.
It’s worth noting that the Constitutional Court, in its 2017 ruling, essentially affirmed that the existing law, which permits abortion upon a woman’s request, aligns with the Constitution. Nevertheless, the Court urged the legislature to ‘modernize’ the law, setting a two-year deadline that has yet to be met.
In practice, however, the right to abortion in Croatia is eroding. A notable trend among gynecologists is the increasing invocation of conscientious objection, while conservative groups and abortion opponents gain visibility in public discourse. Reports from local media in 2022 indicate that among the 29 public hospitals in Croatia contracted by the HZZO (Croatian Health Insurance Fund) to provide elective abortion services, there are six hospitals where no gynecologists are willing to perform the procedure, citing conscientious objection. Out of the total 359 hospital gynecologists in Croatia, only 164 are willing to carry out abortions up to the tenth week of pregnancy as legally permitted, with 195 opting out. Beyond ethical objections, the cost of abortion also impacts its accessibility, with the average price of a surgical abortion around three hundred euros and medication-induced abortion slightly less.
The most prominent example of the unavailability of abortion in Croatia was the case of Mirela Cavajda, who was denied a medically recommended abortion by the Croatian healthcare system despite her fetus being diagnosed with a brain tumor. Doctors advised that the child would either not survive or endure severe hardships. Faced with systemic barriers, Cavajda sought the procedure in neighboring Slovenia, underscoring a broader trend of Croatian citizens traveling abroad for medical services that are legally available but practically inaccessible at home.
The Importance of Constitutionally Guaranteeing Abortion Rights
Concerns over the practical availability of abortion and the desire to fortify women’s reproductive rights through legal measures have spurred proposals in Croatia to enshrine the right to abortion within the Constitution. These proposals are championed by activist collectives advocating for the right to choose, as well as accessible and free abortion services. They also enjoy support from parts of the parliamentary opposition. In 2022, the left and liberal opposition advocated for a referendum to constitutionalize abortion rights.
This movement gained momentum following developments in the United States in 2022, when the Supreme Court eliminated the constitutional protection of abortion rights. The reversal of the landmark ‘Roe v. Wade‘ decision, which had affirmed the right to abortion up to the 24th week of pregnancy since 1973, ignited fears of increased mobilization by right-wing and conservative groups in Croatia to restrict or eliminate these rights.
The 2022 US Supreme Court decision also prompted activists in France to press the government for constitutional changes that would clearly protect a woman’s right to terminate a pregnancy. The French government itself, in explaining the changes to the Constitution, referred to that case: “Unfortunately, this event is not isolated — in many countries, including in Europe, there are currents of thought that seek at all costs to hinder women’s freedom to terminate a pregnancy if they wish”.
The 2022 decision by the US Supreme Court also galvanized activists in France to urge their government towards constitutional amendments that unequivocally safeguard a woman’s right to abortion. In articulating the rationale for these constitutional modifications, the French government cited the American case, “Unfortunately, this event is not isolated — in many countries, including in Europe, there are currents of thought that seek at all costs to hinder women’s freedom to terminate a pregnancy if they wish.”
One of the most extreme instances of abortion rights being curtailed in Europe occurred in Poland. In 2020, the constitutional court decreed that terminating pregnancies due to severe fetal abnormalities, including Down’s syndrome, was no longer permissible. Despite widespread opposition and mass protests, Polish conservatives, with their adamant focus on fetal rights from conception, have seen their policies result in tragic outcomes for women. Agnieszka T., who was expecting twins and lost one in utero, became a casualty of these policies. Despite the risk to her life and the viability of the remaining fetus, medical professionals, as reported, delayed intervention to save the second fetus until it was perilously late.
As Polish women anticipate a more liberal government to ease the stringent restrictions imposed by the previous administration, their country stands as an example and caution of the extensive potential for the rollback of reproductive rights—a scenario feminists and advocates for choice have long cautioned against (1, 2, 3).
