The European Union often presents itself as a global forerunner on gender equality issues—a claim that is not entirely unfounded. Since the 1970s the EU has adopted an array of laws and policies ensuring gender equality in relation to pay and working conditions, instituted a somewhat robust framework for guaranteeing maternity and second parent leave, and adopted legislation combatting gender-based violence. Yet on the issue on access to safe abortion and reproductive freedom within its member states, the EU has to a large extent remained silent—that is, at least, until Dobbs.
In the aftermath of the decision, some EU institutions and leaders have mobilized to assert reproductive freedom in an increasingly politically divided context. In this brief post, I explain how the EU regulates abortion through economic and human rights frameworks and argue that the current approach not only contributes to a system of stratified reproductive freedom, but also risks privatizing and depoliticizing the issue of abortion access.
In 2022, shortly after the Dobbs decision was released, the EU Parliament adopted a resolution calling for a right to abortion to be included within the EU Charter of Fundamental Rights, which would influence EU’s legislation and policies and would, in a limited way, contribute to ensuring access to abortion in EU Member States. Moreover, replying to an Opinion from the French National Assembly, the EU Commission explicitly recognized for the first time that access to safe and legal abortion is threatened within the EU, while stressing its support to women’s organizations throughout the EU. However, the Commission also listed several constraints preventing any capacious intervention of EU law into this area, including the fact that EU human rights apply only when EU law is implemented by States, and that health is an exclusive competence of Member States. In light of these constraints, the general consensus is that, under the current Treaties, EU law has very little say about how Member States decide to regulate access to abortion domestically.
As a result, like in the United States, abortion access in the EU is restricted in ways that predominantly harm poor, racialized, immigrant and rural communities, and many need to travel long distances to access abortion. In Italy, a majority of medical staff refuses to practice abortion on the ground of conscientious objection, with more than 90% of physicians refusing in some regions. In Germany, where abortion is still punishable under criminal law, abortion ‘on request’ is only legally permitted within the first twelve weeks after a non-medically-necessary 3-day waiting period, and a biased mandatory counseling session. In addition, social security does not always reimburse patients for the cost of abortion, and even when it does, the cost often must be paid out of pocket on the front end. Finally, for years now, and in parallel to the rising prominence of right-wing governments and parties across the EU, well organized anti-abortion movements have sought to limit existing rights, have harassed medical staff, have lobbied national legislators to adopt new restrictions, and have mobilized human rights discourses – among others – to do so.
While most of the current legal and policy discussions about abortion access have focused on the EU human rights framework and its limits, most commentators have failed to notice that in the EU—following a European Court of Justice decision in 1991—access to abortion in cross-border situation is protected by EU economic rules. Abortion is classified as an economic service, and the fundamental EU economic right to provide and be recipient of economic services therefore protects the right of people to travel to get abortion, or receive pills or information from providers based in another Member State. To justify restrictions on such services, the State needs to show that doing so pursues a legitimate goal, is necessary and proportionate, and is in line with human rights. Overall, these requirements have heavily restricted the domain of State’s regulatory freedom in terms of economic regulations. According to some human rights experts, for instance, it would be almost impossible for States to place restrictions on pill distribution via telemedicine.
In light of this background, some commentators have suggested that the turn to the market may foster feminist goals and provide an alternative to the limited human rights. But, as I have argued elsewhere, coding abortion as an economic service in the current context may in fact further commodify health in EU, while entrenching a system of stratified reproductive freedom.
Since the 1980s, the Court of Justice of the European Union has found that there is a right to cross borders (within the EU) to access medical services abroad and that healthcare falls within the purview of the EU’s economic rules. Over the following decades, health law experts have documented the gradual shift from solidarity to the market paradigm in relation to health issues, which they argue has helped solidify a consumerist model in health mediated primarily through the notion of contract between the consumer and the provider, while home states to a large extent retain control over which services will be reimbursed. Scholars have argued that while these rules enhance the autonomy of patients, they privilege mobile, well-educated, and wealthy patients.
Understanding abortion as an ‘economic service’ may therefore empower certain individuals, but it also risks entrenching the commodification of health services at a time that fiscal austerity and privatization, imposed via EU economic governance rules, have reshaped and significantly undermined health care services. Moreover, coding abortion as a ‘service’ in this context privatizes it and depoliticizes the issue of abortion access, making it an issue of ‘private’ consumers’ transnational self-government. This framing makes abortion a service that transnational consumers can access—but only if they are mobile, have networks and knowledge and resources to travel, and internalize the costs related to abortion. This way of regulating abortion aligns with the neoliberal ‘minimal’ state intervention: through market rules, the EU does not require States to make abortion accessible, universal and affordable – in line with their international human rights obligations. Rather, it limits itself to enabling individual ‘choice,’ which ends up privileging only those who are able to move across the EU. But even those who are able to travel to get abortion will have to face important costs: as human rights courts and bodies have found, travelling to get abortion is an additional source of anxiety and psychological burden.
Feminist and critical race theory scholars have repeatedly warned about the dangers of coding gender justice issues, and in particular reproductive justice issues, in market terms. They have argued that markets are inherently exclusionary, and reproduce gendered and racialized hierarchies; and they have criticized the notions of ‘choice’ and ‘autonomy,’ showing how making them paramount in the legal and policy discourse may isolate regulation of procreation from politics and the structural forms of intersectional inequalities in which they are embedded. We need the same critical insights when assessing how EU market rules regulate abortion access transnationally before celebrating this as furthering feminist emancipatory goals.
Dobbs has prompted renewed and much needed conversations about the threats to reproductive justice across the EU. The conversations within EU policy circles and legal scholarship are, however, nowhere near a full-fledged critical assessment of the ways in which the EU itself enables gender injustices to persist. The recent surge of far-right parties in the recent European Parliament elections and far-right parties coming to power (in Italy and the Netherlands, for instance, and very likely in France) makes these conversations all the more urgent, and the highly doctrinal discourse in EU legal scholarship, which is often disconnected from social realities, risks enabling what public health scholars have described as “a crisis in the making.”
