Brussels Behind the Scenes: Rights fightback

The US supreme court’s recent decision to erode abortion rights sent shockwaves through much of the civilised world. EU lawmakers are attempting to shore up those freedoms on this side of the Atlantic but may struggle to make sure they are gold-plated.

Not everybody may have known what ‘Roe v. Wade’ was a couple of weeks ago but we sure do now. The conservative-leaning supreme court of the United States has made sure that the landmark legal case has become firmly part of our Zeitgeist.

As a quick refresher: the court struck down the 50-year-old ruling, insisting that the right to abortion is not protected by the US constitution. It means that states now have more free rein to set abortion laws, with many set to restrict or even outlaw the procedure altogether.

That shocking development has prompted MEPs to vote on a resolution that urges EU countries to decriminalise abortion and remove hurdles that make it difficult for women to terminate pregnancies.

But this admirable push to safeguard rights may be undermined by the ceaseless vagaries of EU politics.

BRUSSELS BEHIND THE SCENES is a weekly newsletter which brings the untold stories about the characters driving the policies affecting our lives. Analysis not found anywhere else, Sam Morgan helps you make sense of what is happening in Brussels. If you want to receive Brussels behind the scenes straight to your inbox every week, subscribe to the newsletter here.

MEPs backed the resolution at their plenary session earlier this week by 324 votes to 155 (38 abstentions), illustrating how divisive the issue is on this side of the Atlantic as well.

The non-binding document decries the supreme court decision and insists that the right to abortion should be written into the EU’s Charter of Fundamental Rights. The charter includes everything from prohibiting slavery to the right to vote in European elections.

Abortion rights vary greatly across the EU. Malta, for example, outlaws it in all circumstances and recently made headlines when a US citizen miscarried and had to be evacuated to Spain to receive urgent life-saving medical treatment.

Poland imposes significant limitations on when abortions can be carried out and other curbs in countries like Croatia, Italy and Slovakia also make it difficult for women to get access to the procedure.

The EU has no legal say over abortion laws, which means the effort to include abortion in the Charter of Fundamental Rights is a symbolic act at best. Legal experts say it might come into play if the free movement of services is at stake but that is unlikely.

Poland also technically enjoys an opt-out from the charter, so even if abortion were included in the rights text and somehow made applicable to certain aspects of EU law, then the Polish government might find a way to ignore it in any case.

Upgrading the charter in the first place could also be scuppered by the European Council, which is made up of the 27 member state governments.

Charter amendments require agreement between the various EU institutions and to give it legal effect over EU law, the main treaty that underpins how the Union functions would need to be amended as well, as the current text specifically mentions the 2007 version of the charter.

Treaty changes require unanimous approval by the member states.

Until now, governments have been very wary about opening up the Lisbon Treaty as that will unleash a complicated process of horse-trading and vested interest-peddling, which the EU could quickly lose control of.

Add abortion rights into that mix and it could go one of two ways: either the anti-choice member states would flat out refuse to agree to amendments in other areas or the issue could become a bargaining chip used by pro-choice states to get what they want. "We'll drop this if you support this" etc etc.

Neither option is particularly pleasant to consider.

Treaty change may indeed be on the horizon, after the European Commission and Parliament concluded a year-long citizen-led debate about how the EU should change. A list of recommendations drawn up after that process includes issues that would require the treaty to be rewritten.

What can be done?

MEPs are not fools. They know that a non-binding resolution about an issue that the EU has no power to regulate is gesture politics only. But there is still a place for that. Soft power is better than no power at all.

Malta's government, after all, is reviewing the details of its ban following the recent slew of headlines condemning the barbaric nature of its refusal to help a woman that required emergency medical treatment. Pressure sometimes works.

The Parliament's resolution also calls on the US congress to codify the right to abortion, something that currently looks difficult to pull off given the split between democrat and republican numbers in the decision-making body.

President Joe Biden has urged US voters to remember that when the midterm elections roll around in November. Polls suggest that a majority of Americans disagree with the supreme court decision but it is hard to imagine that it will sway the numbers towards Biden’s democrats.

The president nevertheless issued an executive order yesterday, which will aim to protect women that travel out of state to seek abortions and other legal scraps that might mitigate some of the damage done by the court.

Here, there is a parallel between the federal government and the European Parliament. Lacking teeth to get the job done themselves, they must rely on political pressure and symbolic gestures to try and influence voters.

Unfortunately, in neither case does it look like there will be much of a reversal of the ongoing erosion of women’s rights. Both are fighting with depleted arsenals and, in the end, will have to act according to how people vote.

As Biden said during his plea for democrat majorities after November’s midterms, “it is a choice between the mainstream and the extreme.” It is painful to think how many women will die or suffer because of the whims of politics.

BRUSSELS BEHIND THE SCENES is a weekly newsletter which brings the untold stories about the characters driving the policies affecting our lives. Analysis not found anywhere else, Sam Morgan helps you make sense of what is happening in Brussels. If you want to receive Brussels behind the scenes straight to your inbox every week, subscribe to the newsletter here.