The Evolution of Privacy and Abortion Rights: A Comparative Legal Analysis of The United States and The European Union

Abstract

The legal frameworks governing abortion rights have seen profound shifts in both the United States and the European Union, shaped by contrasting principles of constitutional law and human rights law. In the U.S., abortion was historically protected under the 14th Amendment’s right to privacy, as established in Roe v. Wade in 1973. This precedent was later modified by the undue burden test from Planned Parenthood v. Casey in 1992, which allowed states to regulate abortion as long as no substantial obstacles were placed on a woman seeking the procedure. However, the recent Dobbs v. Jackson Women’s Health Organization in 2022 ruling overturned Roe, giving individual states the authority to legislate abortion access, resulting in a highly polarized and fragmented legal landscape. In contrast, the EU regulates abortion through a human rights-based approach, under Article 8 of the European Convention on Human Rights, which guarantees the right to private and family life. The margin of appreciation doctrine, employed by the European Court of Human Rights, grants EU member states discretion to regulate abortion based on cultural, moral, and religious norms, leading to significant variation in abortion laws across Europe. This paper undertakes a comparative legal analysis of the U.S. and EU approaches to abortion, examining the evolution of privacy and human rights frameworks. It further explores the practical implications of these legal systems, focusing on access to abortion and the impact on vulnerable populations. The analysis also considers the future legislative trends in both regions, with attention to the political forces shaping potential reforms.