a)  Hungary / b)  Constitutional Court / c) / d)  23-11-1998 / e)  48/1998 / f) / g)  Magyar Közlöny (Official Gazette), 105/1998 / h) .
Keywords of the systematic thesaurus:
General Principles - Certainty of the law.
General Principles - Weighing of interests.
Fundamental Rights - General questions - Limits and restrictions.
Fundamental Rights - Civil and political rights - Right to dignity.
Fundamental Rights - Civil and political rights - Right to life.
Fundamental Rights - Civil and political rights - Freedom of conscience.
Fundamental Rights - Economic, social and cultural rights - Right to health.
Keywords of the alphabetical index:
Abortion / Foetus, legal status / Child, unborn, protection of life.
It is not unconstitutional if the law makes it possible to terminate a pregnancy when a woman is in a crisis situation. The legislator can give up regulating the monitoring of whether a woman's condition is actually serious enough to qualify as a crisis situation in accordance with the Constitution only if at the same time the legislator protects by its laws the life of foetuses. The legislator should regulate the notion and the possible application of the notion of crisis situation by an act of parliament.
A group of petitioners sought to challenge the constitutionality of Act LXXIX of 1992 on the protection of the life of the foetus (henceforth: Abortion Law). The petitioners contend that some provisions of the Abortion Law and the Law as a whole are unconstitutional. The pro-life petitioners requested the Court to find that the foetus was a legal person from the moment of conception. The Constitutional Court rejected these petitions recalling its previous Decision no. 64/1991 (XII.17), in which the Court had already held that it could not determine whether a foetus was a person within the meaning of the Constitution. It was for Parliament to legislate on the matter. The current decision was based upon the principles and guidelines determined by a previous decision of the Court on the regulation of abortion. In Decision no. 64/1991 (XII.17), the Court struck down the regulation by the Minister of Health which was at that time in force, on formal grounds: fundamental rights, the Constitutional Court held, should have been regulated by an act of parliament, and the Court refrained from making a determination on the merits of the constitutionality of the regulations on abortion. The Court however laid down guiding principles for the future abortion law.
On the basis of these guidelines, Parliament enacted the Abortion Law in 1992, which did not acknowledge that the foetus was a legally protected entity from the moment of conception, and hence permitted abortion for certain reasons and in the early months of pregnancy.
In its current decision, the Court examined the constitutionality of Article 6.1.d of the Abortion Law, which allowed abortion in the first 12 weeks of pregnancy if a woman was in a crisis situation, and the Court also dealt with the petitions concerning the legal status and the right to life of a foetus.
According to Article 12.6 of the Abortion Law, a crisis situation is one as a consequence of which a pregnant woman will be in a desperate mental, physical or social condition and this endangers the healthy development of the foetus. In order to prove there exists a crisis situation, the woman concerned should sign the claim for an abortion.
In the opinion of the petitioners, the foetus is insufficiently protected by this Abortion Law, because no one with the foetus's interest in mind oversees the process through which it is determined whether the pregnant woman meets the conditions laid out in the statute. Nor, in present Hungarian practice, is such a determination open either to the public or to someone guaranteeing the interests of the foetus.
The question the Constitutional Court had to answer was therefore whether the State, by enacting the Abortion Law, had fulfilled the requirements concerning its duty to protect the life of the foetus against the woman's right to dignity and to choose, when it permitted abortion for women in a crisis situation. The notion of crisis situation is unclear, since this is in fact an argument in favour of the woman's right to choose and against the protection of the life of the unborn, whereas under the Law it seems that abortion is permitted, paradoxically, in the interest of the foetus. According to the Court, this violates the constitutional principle of legal certainty, because the reason for allowing abortions is self-contradictory. The question is therefore whether it is unconstitutional if the reason for the termination of pregnancy is the woman's crisis situation. Under the Abortion Law, the abortion can be based only upon the assertion of the woman that she is in a crisis situation, without her having to prove or be subject to verification of the existence of these reasons. This is in order to protect the woman's right to privacy. The Constitutional Court, however, declared in the instant case, that the Law would not disproportionately restrict the woman's right to choose and to dignity if it requires the woman to provide justification for the abortion. The relevant provisions of the Abortion Law currently in force in practice meet the requirement concerning the woman's right to choose, but do not fulfil the duty of the State to protect human life. In consequence, the constitutional balance between the woman's right to dignity and the State's duty to protect life is upset. This regulation of the Abortion Law is unconstitutional since there is not a balance between the fundamental right of the woman and the constitutional duty of the State.
In its reasoning, the Court also laid down guiding principles for Parliament. The Court argues that there are two possible ways the State could protect the right to life of a foetus. The first possibility is that the legislator does not amend the Abortion Law, but instead counterbalances the regulation of the Abortion Law by making provisions aiming to protect the life of foetuses. (e.g. co-operation with the pregnant woman, providing the pregnant woman with proper psychical, medical, social and financial assistance). The second way would be to define the notion of crisis situation, giving some possible and typical reasons to qualify for an abortion.
Supplementary information:
Two judges attached a dissenting opinion, in which they pointed out that the Constitutional Court should have declared unconstitutional the provision of the Abortion Law under which the abortion was possible when the woman was in a crisis situation. Two justices out of eleven wrote separate concurring opinions. According to one, to define some typical reasons to qualify for an abortion would seriously violate the woman's right to privacy.