CONSTITUTIONAL COURT OF THE REPUBLIC OF CROATIA AND THE „ABORTION DECISION“

CONTEXT, IMPLICATIONS, AND CHALLENGES TO IMPLEMENTATION

Abstract

Authors discuss the context, implications, and major challenges of implementing the Croatian
Constitutional Court's historic 2017 „Abortion decision“. Twenty-six years after it was originally
challenged, the socialist era abortion-enabling 1978 law withstood the test of constitutionality against a new
constitutional and value order introduced by the 1990 Croatian constitution. This preservation and
constitutionalization of the periodic abortion model drew on a systemic and teleological interpretation of
constitutional guarantees of the rule of law (regarding contestation of the law’s formal constitutionality,
seeing as it predated the new Constitution), equality, freedom and personhood, protection of dignity,
privacy, family life, and freedom of thought, conscience, and religion. It thus authoritatively protected a
woman's right to terminate her pregnancy on demand, while simultaneously relegating to the Parliament
the option of exactly pinpointing the start of „life “and underlining the necessity of modernizing this almost
50-years-old piece of legislation. However, such a parliamentary mandate to complete the constitutional
architecture of the right to freely decide on childbirth comes with a few issues and potential problems. This
paper thus intends to highlight the major challenges in implementing the Court's decision, the foremost
among them: issue of conscientious appeal. The authors discuss the remit of this phenomenon, identifying
its „hard limits “and expounding on limitations and conditions that will have to accompany its future
regulation. The potential abuse of power inherent in the right to conscientious appeal and its potential to
impose a health practitioner's private opinion on other citizens and thus disable access to a legal health
service will, the authors hold, be a true litmus-paper of the future abortion legislation's constitutionality.