Comparative Constitutional Design and Legal Culture
Studies in Comparative Law and Legal Culture series
Edited by Günter Frankenberg
Chapter 6: Legal transfer of women and fetuses: a trip from German to Portuguese abortion constitutionalism
Abortion legislation in Europe has experienced a common and gradual liberalizing trend since the 1960s. More and more European countries have by now departed from indication models (such as those allowing women to have an abortion to protect their life and health, in case the fetus has serious malformations, when the pregnancy results from rape or when the woman lacks social means), and embraced a periodic model or time-phase solution, allowing women to freely decide during a period of time whether or not to go through with their pregnancies, with or without a mandatory reflection period, and a counseling procedure seeking to ensure either women’s informed decision-making, or to dissuade women from having an abortion. Pioneered by Scandinavian countries, the liberalization of abortion became a unifying issue of the feminist movement in the Europe of the early 1970s, especially in countries with a strong Catholic tradition. Among the factors accounting for a change in public opinion and press coverage in favour of liberalization were the high number of illegal abortions, the fact that in many countries the number of prosecutions was minimal, as well as the discriminatory impact of criminalization on poor women who could not travel abroad to have an abortion. Both feminist ideas challenging the patriarchal family, and broader health concerns linked to the high mortality of illegal abortions, were prompting the liberalization of abortion legislation in the US around the same time. As the abortion movement gained momentum in both Europe and North America, anti-abortion forces were generated, supported by the Catholic Church and conservative parties
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