2023-05-09 22:35:39
A divided Constitutional Court (TC) has fully endorsed thirteen years later the abortion law of 2010, approved with the Government of José Luis Rodríguez Zapatero, considering that the voluntary interruption of pregnancy is a fundamental right of the woman. The majority decision of the Plenary does not see problems of unconstitutionality or in the deadline system nor in the regulation of the right to conscientious objection and the process of information to the woman before making the decision to abort.
With the support of the seven progressive magistrates and the vote against the four conservative judges -Ricardo Enríquez, Enrique Arnaldo, Concepción Espejel and César Tolosa-, the Plenary of the institution has given its approval to the sentence drafted by the vice president of the institution, Immaculate Montalbanwhich took charge of the draft after the Constitutional Court rejected the presentation by magistrate Enrique Arnaldo, who, although he endorsed the deadline system, denied that there is a right to abortion and saw the regulation of the right to conscientious objection and the procedure as unconstitutional information to the woman before making the decision.
In addition to Montalbán herself, the president of the TC, Cándido Conde-Pumpidoand the magistrates Ramón Sáez, Juan Carlos Campo, María Luisa Segoviano, Laura Díez and María Luisa Balaguer, who has announced a concurring particular opinion.
The court considers that the system of deadlines (which replaced the previous one of “indications”, which only allowed abortion in case of risk to the life or health of the pregnant woman, rape, or probability of serious physical or mental defects in the fetus) is according to the Constitution because “recognizes pregnant women the reasonable scope of self-determination that requires the effectiveness of their fundamental right to physical and moral integrityin connection with her right to dignity and free development of her personality”. of any kind, the decision that it considers most appropriate regarding the continuation or not of the pregnancy”.
“Significant existential affectation” for women
The TC considers that the latest reform of the abortion law promoted by the Government of Pedro Sánchez does not leave without object the appeal of the 71 deputies of the PP on which it is now ruling, because on February 8 and 9, “prior to ” Upon approval of the legislative amendment, the Plenary “deliberated all the points of fact, the issues and legal grounds of the claim and agreed by majority to dismiss the appeal in its entirety.”
The Plenary of the TC has carried out the examination of the constitutionality of the 2010 law taking into account, it says, “the important existential affectation that pregnancy and childbirth supposes for the body and psyche of the womanas well as their constitutional rights, which the state must respect in any case when articulating the necessary protection of prenatal life”.
For the court of guarantees, the system of terms “guarantees the state duty to protect the life” of the unborn child, since there is “a gradual limitation of the constitutional rights of women based on the advancement of pregnancy and the physiological-vital development of the fetus”, as well as in attention to the possible appearance of circumstances that affect in an extraordinary way the rights of the woman, such as the risk to her life or health or the detection of serious anomalies in the fetus.
The magistrates invoke the jurisprudence of the European Court of Human Rights to make it clear that the public powers “not only have the duty to respect and not harm fundamental rights, but also the positive obligation to guarantee their effectiveness”. Therefore, he emphasizes, public administrations have the obligation to “ensure the provision of voluntary interruption of pregnancy.”
Regarding the regulation of conscientious objection, the TC points out that “the right to ideological freedom is not enough, by itself, to free citizens from compliance with constitutional and legal duties for reasons of conscience.” And given its restrictive nature, it adds, “its exercise must be made compatible with the right of women to effectively access the voluntary interruption of pregnancy health service.” Hence, it endorses that only health personnel “who practice direct clinical interventions, to the exclusion of other auxiliary, administrative or instrumental support actions” before or after the practice of abortion can invoke conscientious objection.
Four magistrates disagree
The four magistrates who do not support the ruling consider, however, that the ruling “seriously exceeds the scope and limits of jurisdictional control” which corresponds to the court, since it enters to resolve “improperly” on issues of the 2010 law that “according to constitutional doctrine have suddenly lost object” as a result of the latest reform of the abortion law. In your opinion, it is “incongruous” and unjustified that their colleagues do not rule on whether or not parental consent is necessary if the woman who wants an abortion is between 16 and 18 years old, arguing that the issue raised has declined after a new modification in 2015 once again established the need for that parental permission, and at the same time he does rule on other issues that, according to his criteria, have lost their purpose due to the reform last February.
Conservative magistrates defend that the ruling “comes to recognize a new constitutional rightwhich he calls “the right of women to self-determination regarding the termination of pregnancy””, with which “it is located outside the margins of constitutionality control that correspond to this court”, since it recognizes new fundamental rights -he recalls- ” It is a power of the constituent power, not of the constituted powers and, therefore, it is not of the Constitutional Court”.
“It is not up to the Constitutional Court to declare that the system or model of deadlines” -they emphasize- is, as such, in accordance with the Constitutionsince “when carrying out the control of the constitutionality of the laws on the occasion of an appeal of unconstitutionality, it does not prosecute “legal models” or “legislative options”, but rather specific legal texts submitted to its prosecution”.
Likewise, they value judgment 53/1985 of the court itself and reproach their colleagues for ignoring “the doctrine established then on the scope of constitutional protection” to human life in formation, later confirmed by the TC. The appealed law itself, they recall, “reiterates in its preamble to have taken this doctrine into account.” And in any case, they maintain that this sentence exalts “two fundamental declarations that in no way can be considered superseded”: that “neither the protection of the unborn child can absolutely prevail over the rights of women, nor can the rights of women have absolute primacy about the life of the unborn”, and that the State “has the obligation to establish a legal system for the defense of life“.
Espejel describes the sentence as “ideological”
In his opinion, that the law establishes that the information that is provided to the woman (by means of a brochure) “may also be offered orally, if the woman requests it” is unconstitutional and null, and that the interruption of pregnancy in the the first 22 weeks of gestation in the face of a “serious risk to the life or health of the pregnant woman” is not unconstitutional as long as the term “health” is interpreted as referring only to “the physical or mental health of the pregnant woman, without being able to extended, therefore, to the concept of “social health””.
Judge Concepción Espejel also adds other reasons for unconstitutionality to those she shares with her dissenting colleagues. Thus, she questions the composition of the court “by lack of due appearance of impartiality” of several of its members, including herself (whose abstention was rejected by the Plenary), for having held “public office in exercise of which they formed criteria on the issues that have been the subject of resolution with loss of impartiality.
For Espejel, the ruling “does not adhere to a strictly legal interpretation, giving entry to an ideological approach tending to create a non-existent fundamental right of women to abortion that, in addition to leaving unprotected human life in formation, exceeds the limits of prosecution” of the Constitutional and “ends up imposing as the only possible constitutional model” that of the appealed law, “closing off any other legislative option possible”.
The resource of the PP
In its appeal of unconstitutionality, the PP assured that the system of deadlines (which allows free abortion in the first 14 weeks of gestation) “allows the end of the life of the nasciturus by the mere will of the woman” without demanding “any external or objective cause that allows pondering and resolve the conflict of values that occurs in abortion”. The appellant deputies understood that with this system “the State renounces protecting the life of the unborn child and leaves it to her fate, to what her mother decides.”
As they argued in their writing, now fully rejected by the Constitutional Court, against the doctrine that the court established in 1985 that “human life is a continuum that begins with gestation”, article 14 of the Organic Law 2/2010, of March 3, on sexual and reproductive health and the voluntary interruption of pregnancy “introduces into the legal system a human life of a lower category (less than fourteen weeks) that can be eliminated by the mere will of the mother, without the State doing anything to protect her”.
The Popular Party also considered it unconstitutional, among other issues, to limit the right to conscientious objection to health professionals “directly involved in the voluntary termination of pregnancy”, which according to its criteria generated “legal uncertainty regarding who these are professionals” by opening the door to the exclusion of other professionals “with a determining prior intervention”, such as the doctors who must sign the preliminary reports or the health workers who prepare the instruments, or a posteriori (the personnel who collect and destroy the biological remains after the abortion). All of them, defended the popular parliamentarians, “the right to conscientious objection should be recognized.” A thesis that the magistrate Enrique Arnaldo shared in the presentation that was rejected by the Plenary.
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