Italian Abortion Case
Italy Constitutional Court
Constitutional Case No. 27/1975 (1975)
- Written by Mary Katherine Cunningham, JD
Facts
Article 54 of the Italian Penal Code permitted abortion in certain limited instances of necessity. A criminal proceeding in Milan raised a question of constitutional legitimacy regarding Article 546 of the penal code, which penalized any person who performed an abortion on a consenting woman. In the case before the court, the question concerned instances in which the pregnancy was dangerous to the physical and psychological health of the woman but the pregnancy did not meet the necessity requirements of Article 54. The trial court concluded that a therapeutic abortion permitted under Article 54 required a showing of inevitable and imminent danger of grave damage to the pregnant woman. The trial judge concluded that Article 54 prevented pregnant women from seeking abortions to prevent “enduring aggravations of preexisting physical alternations” for fear of criminal prosecution. Article 546 of the penal code, therefore, violated Article 31 and Article 32 of the Constitution of Italy, which protected “maternity, childhood, and youth” along with safeguarding health as a fundamental right of the individual. The matter was referred to the Italy Constitutional Court for a declaration of illegitimacy finding that Article 546 of the penal code was unconstitutional. The Italian government argued on appeal that the then-current criminal code on abortion was constitutional under Article 32 of the constitution, as abortion was incompatible with the protection of maternity and childhood. The Italian government argued that Article 54 provided an exemption from prosecution for an abortion done to protect the health of the mother, thereby protecting the health of the mother as a fundamental right.
Rule of Law
Issue
Holding and Reasoning (Per curiam)
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