In early March, the French parliament agreed to enshrine the right to abortion in the constitution. This way, abortion will no longer be subject to the whims of politics. France is the first country to take this step. Should the Netherlands take the same step? And what about the bill to remove abortion from the Criminal Code? Martin Buijsen, Professor of Health Law at Erasmus School of Law, spoke about this during the Spraakmakers programme on NPO Radio 1. In addition, the Financieele Dagblad devoted an article to the abortion is healthcare (Abortus is zorg) bill proposal.
"The Dutch constitution is not the French constitution"
Despite the French policy, there seems to be no reason in the Netherlands to include abortion in the constitution. "The Dutch constitution is not the French one", says Buijsen. "The Dutch constitution, unfortunately, offers no protection against political whims. We do not have a Constitutional Court, which France does, and that court can review legislation against the French constitution. It is a bit of an illusion to think that including such a right in the Dutch constitution offers protection. It is a symbolic gesture, an expression of what we all think. It does not offer real protection."
One may want to enshrine abortion in the constitution because amending it is more complicated than a normal law. "But it also depends on a large political majority. And majorities can change", Buijsen says. "So, what you need, if it is really to provide protection, is a judge who can review it against the constitution."
If a Dutch Constitutional Court were established, Buijsen says it would certainly make sense to include abortion in the constitution. "If the right were included in the Dutch constitution, legislation from The Hague that is at odds with the constitution could be declared inapplicable by the court."
Transferring abortion laws
Besides including abortion in the constitution, there is a current political debate about transferring abortion legislation out of the Criminal Code. "That is the bill tabled by GroenLinks in the autumn. And that is probably a better line of thinking", Buijsen argues. "It is not a bill without problems; it has a lot of difficulties. But if you want to improve access to abortion care, you will indeed have to start thinking in the direction of abortion as regular healthcare. You must start thinking seriously about that bill and how you anchor that. And once it is regular healthcare, then it is also the case that you are dealing with a fundamental right somewhere. Even the Dutch constitution talks about care as a fundamental right."
Bill Abortion is healthcare
In the Netherlands, executing an abortion is punishable if the required licenses and quality requirements are not met. This is stated in Article 296 of the Criminal Code. The bill Abortion is care, which Ellemeet tabled, wants to eliminate this provision. In doing so, she wants to move much of the Wet afbreking zwangerschap to the Wet kwaliteit, klachten en geschillen zorg (Wkkgz). "The Wkkgz is not suitable for that", Buijsen argues. This law is intended, among other things, to ensure quality of care and is not specific enough to regulate abortion care.
"It is also frankly questionable to me whether this can ever become a normal medical treatment", Buijsen says. "There will always be doctors who will not or cannot perform it because they have conscientious objections, for example."
Who is punishable, and when?
Article 296 of the Criminal Code criminalises abortion. Only the person performing the abortion - and therefore not the woman - can be criminally liable if specific conditions are not met. These conditions are, for example, that abortion can only be performed by a doctor in a licensed hospital or clinic and that a conversation between the woman and the doctor takes place beforehand. The woman can never be criminally prosecuted. With doctors, this rarely, if ever, happens in practice, as the practice works well under current legislation.
Chilling effect and successful evaluation
Buijsen further questions the bill. “There is nothing wrong with decriminalising, but I wonder whether doctors and women in the Netherlands are hampered in accessing abortion care. Conditions abroad, such as in Poland, cannot be compared to here", the Professor says. "There is often talk about the chilling effect [red. the exercise of certain rights is restricted because people are afraid of potentially negative consequences], but to what extent is this the case in the Netherlands? It is a predictable, transparent form of care, so I do not see that effect."
Buijsen says the Dutch abortion law is working correctly. "The law has been successfully evaluated twice. Why is this not part of the discussion? There are no abuses and it is functioning properly." According to Buijsen, its inclusion in the Criminal Code has no function other than to protect pregnant women: "It guarantees medical-professional treatment. I also do not believe that the legislator composed this law in the 1980s because he thought it was a morally reprehensible act, that there was a message in it."
