Deference to ‘Morals’ and Majority: Reproductive Rights before the European Court of Human Rights

This paper examines the ways in which the European Court of Human Rights defers to state authorities in cases involving reproductive rights through its use of the margin of appreciation doctrine. The Court will often refer to the ‘moral and ethical’ nature of the issue when it comes to reproductive questions, applying an almost automatic wide margin of appreciation. The Court will also rely on the state authorities’ ‘better position’ in evaluating domestic circumstances and values. Focusing on a representative selection of cases involving reproductive rights, this paper will discuss the inconsistencies in the Court’s use of doctrine and the problematics of deference in reproductive questions in particular. The paper highlights the Court’s variable use of the margin of appreciation doctrine and the consensus test exploring also the implications of the Court’s practice for the enforcement and development of reproductive rights in Europe.