As announced on Tuesday (9), Spain’s Constitutional Court (TC) passed a ruling on the so-called abortion law of 2010, declaring it fully constitutional by seven votes to four. There were no surprises in the judges’ votes: the so-called “progressive block”, which is a majority in the TC since its renewal at the end of last year and the election of President Cándido Conde-Pumpido, in January 2023, was unanimously imposed.
The essence of the sentence, according to a note published by the TC itself, is to recognize the so-called “term system” – which the same court defines as allowing abortion “by the woman’s free decision in the first 14 weeks of pregnancy” – not only according to the Constitution, but as a right whose legal consecration is required by it. The TC argues as follows: “The system of deadlines follows the Constitution because it recognizes the reasonable space of self-determination that the pregnant woman needs to realize her fundamental right to physical and moral integrity, in connection with her right to dignity and free development of her personality. These constitutional rights require the legislature to respect and recognize a space of freedom in which the woman can adopt, autonomously and without coercion of any kind, the decision she deems most appropriate in relation to whether or not to continue the pregnancy”.
As seen, the TC explicitly says that these constitutional rights of women require that the legislature protect their right to freely abort. Thus, the TC intends to veto a possible law restricting abortion in the future, including one similar to that of 1985, which the court itself declared constitutional at the time, since for the TC the Constitution no longer says what it said, although it has not been modified .
Then, the Constitutional Court rejects the criticism that this system does not protect the life of the unborn child, stating that “the system of deadlines guarantees the State’s duty to protect prenatal life, since there is a gradual limitation of constitutional rights of women depending on the progress of the pregnancy and the physiologic-vital development of the fetus”. Literally, according to the Constitutional Court, the constitutional duty to protect the life of the unborn child is fulfilled, leaving it completely unprotected during its first 14 weeks of life. Where the Constitution says that “everyone has the right to life”, the TC reads that “a woman has the right to freely abort”.
The sentence aims to end forever the legislative debate on abortion, by defining it as a fundamental right
In line with these pronouncements, the TC also declared constitutional the rest of the content of the law under judgment, such as the obligation of public financing of abortion or the restrictions on the right to conscientious objection, about which the Constitutional Court says that “must be interpreted restrictively”, and only “for health personnel who carry out direct clinical interventions, excluding other auxiliary, administrative or instrumental support actions”.
Ideology
This sentence must be carried out because there is no other choice; but it is impossible not to subscribe to what Judge Concepción Espejel says in her correct dissenting opinion: “The sentence does not adhere to a strictly legal interpretation, giving rise to an ideological approach tending to create a non-existent fundamental right of women to abortion which, in addition to leaving human life in development unprotected, goes beyond the limits of the Constitutional Court’s prosecution and ends up imposing LO 2/2010 as the only possible constitutional model, blocking the way to any other legislative option”.
The TC, moving away from what its regulatory law establishes and without any precedent for this way of acting (as indicated by the individual votes issued by the four magistrates who voted against the sentence), bases a doctrine on precepts already revoked by the new abortion law 2023 and tries to put an end to the legislative debate on the subject forever. In vain, on the other hand, because if the current TC arbitrarily changes its own 1985 doctrine, another future TC may also change this 2023 doctrine; as has just happened in the US, where the Supreme Court (which has constitutional court functions there) overturned the Roe v. Wade, 1973, in a judgment on June 24, 2022 (in the so-called Dobbs case), declaring that there is no constitutional right to abortion, as the original decision had recognized.
gender perspective
The “abortion law” of 2010, now judged by the TC, had as its title the regulatory law of “sexual and reproductive health and the voluntary termination of pregnancy”; and consistent with that name, in addition to regulating abortion, it contained several precepts that tended to impose a gender perspective on all health, education and social policies in the name of the so-called “sexual and reproductive health”.
These provisions were also challenged before the Constitutional Court as being contrary to the freedoms and rights recognized in the Constitution, such as freedom of education, ideological, religious and expression and thought. The judgment also dismisses the appeal in this matter and ratifies the constitutionality of these norms while understanding that the gender perspective “constitutes a methodological approach and a criterion for the interpretation of legal norms aimed at promoting equality between women and men”, and concludes that ” the transmission, through education and at all educational levels, of ideas or beliefs linked to equality between men and women cannot be considered unconstitutional”.
By rejecting one of the challenges to the abortion law, the decision defines the “gender perspective” as referring to equality between men and women
In this regard, I agree with TC; and it is understood that it delimits the constitutional meaning of the expression “gender perspective”, today so used in several legislations. Referring to equality between men and women, there is nothing to oppose its presence in education and health. The problem arises when the concept “gender” is interpreted as a substitute for “sex” and under its protection one intends to indoctrinate within the so-called “gender diversity”, that is, in the anthropology of gender ideology; this second interpretation seems to have no place in this constitutional doctrine.
As at the moment we only know the press release in which the TC explains its sentence, but not its full text, it will be necessary to be very attentive to the final wording of this matter; because it can be relevant to many other issues and laws, for example, education.
contrary
Among the seven magistrates who voted in favor of the sentence in the plenary of the TC, three were rejected for more than justifiable reasons and another, Concepción Espejel, even abstained on the understanding that there was a reason for incapacity in her and the other three. However, the TC rejected both the refusals and the abstention. That is, four of the magistrates are objectively biased, violating the appellants’ constitutional right to impartial judges. As this right is also recognized in the European Convention on Human Rights, several of the applicants have already announced that they will appeal to the European Court, which guarantees the application of that convention.
Final considerations
We are facing a sentence that – in addition to the serious criticism it deserves for leaving the unborn child without any protection in the first months of life and showing very little respect for the ethical and professional conscience of health professionals – actually changes the nature of CT itself , since it attributes to itself the right to modify the Constitution itself, making it an evolutionary reading and radically altering its own previous doctrine without any embarrassment or justification. I believe that, in addition to the abortion issue, it is a hard blow to the Constitution and the moral authority of the TC itself, which, by becoming politicized and ideologized, becomes yet another product of political debate, losing the institutional aura it still had, with effects that will be painful in the medium term.
On the other hand, as the US case cited above demonstrates, hope must not be lost. Now is the time to work harder to recreate a culture of life, to bring about a new political majority that may one day overturn this unjust jurisprudence and legislation; and it’s time to help prevent abortion, showing solidarity with pregnant women, so that they choose life under any circumstances. It’s time for greater responsibility.
© 2023 Acerensa. Published with permission. Original in Spanish.
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