taly and United States have different visions of the role of compromise when it comes to thorny legal issues such as abortion. The U.S. Supreme Court’s controversial 1973 Roe v. Wade ruling, which struck down a Texas criminal abortion law as overly restrictive, was almost immediately rejected by the public for what it was, namely an effort to provide a legal response to an ethical and medical dilemma. On the contrary, the verdict soon became fodder for a fierce national debate that pit secular against religious, creating irreconcilable positions, and with them rage.
Ideally, compromise should play a part in the civil wellbeing of any culture. But the fallout from Roe v. Wade has all but pushed the concept out of the American social picture. Civil solutions have vanished from the debate.
Italy’s handling of abortion legislation, which I touched on in my previous column, provides an enlightening counterpoint.
Until the 1970s, abortion in Italy was illegal under the country’s 1930 Penal Code, which barred not only abortions but also the publicizing of contraception methods. Only if a pregnant woman’s life was at risk were exceptions made.
The rise of the Italian Communist Party and social uprisings in the 1960s helped bring about a wave of change. In 1971, the Italian Constitutional Court began the process by striking down restrictions on contraception. Four years later, two years after Roe v. Wade, the same court considered an appeal from an abortionist and his patient, who had been criminally prosecuted.
At issue was whether Article 546 of the Italian Penal Code — which criminalized both the person performing an abortion and the woman who consented to having one — violated the country’s constitutional principles.
The court ruled that protection of the fetus was included among the rights guaranteed by Article 2 of the Italian Constitution, which “recognizes and guarantees the inviolable rights of the person.” But it balanced this right by citing provisions contained in articles 31 and 32 providing that the country must protect “mothers, children and the young by adopting necessary provisions” (Article 31) and also safeguard health as “a fundamental right of the individual and as a collective interest….” (Article 32).
The judges, seeing a constitutional “flaw,” reasoned that since the rights of the fetus and those of the woman could not be mutually exclusive, a balance had to be reached between the conflicting rights. Their compromise ruling provided the framework in which a woman could obtain a legal abortion during the first trimester of pregnancy. Though Italy hosts the Roman Catholic Church, one of the most vociferous pro-life organizations on the planet, legal compromise won out.
First trimester, state-funded abortion became legal in Italy in May 1978. Within the first 90 days, a woman over age 18 is allowed to present a medical certificate stating that her pregnancy should be terminated based on health, financial, social, or family concerns. The father of the child is not given veto rights. After 90 days, abortions are allowed only in medical emergencies.
The country’s Christian Democratic Party, a close ally of the Vatican, put the progressive new law to a test in a 1981 referendum that called for its repeal, but more than 65 percent of voters rejected the challenge.
In Italy, courts are free to interpret all laws, including the national Constitution, when deciding a case. As a result, the balance of protections reached regarding the abortion issue there was through a more organic and systematic process than that used in the Roe v. Wade decision.
Italy’s postwar constitution has clauses that specifically protect motherhood, children, the young and health. It reflects the views of a contemporary culture attempting to honor all aspects of social justice. As a result, it’s more inherently understanding of compromise.
In fairness, the reality of abortion in Italy isn’t always easy. Many doctors refuse to perform abortions on grounds of conscience (the Vatican threatened to excommunicate Catholic doctors who performed them) and the United Nations has often decried the lack of sex education and family planning instruction in Italian schools.
But in deciding the issue itself, the Italian Constitutional Court and the U.S. Supreme Court reached almost identical solutions. While the Italian public accepted the decision as a socially progressive act (though public debate continues), the American public responded with divided vehemence.
Instead of accepting the decision in Roe vs. Wade as offering a positive solution to a difficult ethical and medical dilemma, it was seen as creating a problem. Rather than a verdict it has been portrayed as a commandment creating a diehard for-or-against culture clash that is unlikely to end any time soon.
— The author is an American attorney who has practiced in Rome since 1984, specializing in multi-jurisdictional estate planning and administration, real estate investment and U.S. tax law. His column is for informational purposes only and does not provide legal advice.