The conservative block of the Constitutional Court considers that the sentence that has endorsed the 2010 abortion law has meant, in fact, a reform of the Constitution, something for which it has no powers. The dissenting vote signed by the four magistrates of said group -to which EL PAÍS has had access- maintains that what the progressive majority of the court has carried out has been to create a new right that does not exist in the Magna Carta, that of free self-determination of the woman to terminate her pregnancy during the first 14 weeks of gestation, and that this constitutional change cannot be decided by the body of guarantees, because it does not have any constituent power.
The dissenting vote of magistrates Enrique Arnaldo, Concepción Espejel, César Tolosa and Ricardo Enríquez affirms that “it is not up to” the Constitutional Court to “rewrite the Constitution to create, discover or deduce new fundamental rights, substituting the permanent constituent power”. The text adds that “the Constitution is not a blank sheet that the legislator can rewrite at his whim”, just as “it is not a blank sheet that its supreme interpreter”, the Constitutional Constitution, can rewrite without limits. “Social reality,” continues the conservative group, “may even lead to the manifestation of the convenience of recognizing new fundamental rights, but for this the constitutional reform is planned.” The dissenting vote argues that the guarantee body should limit itself, when carrying out the prosecution of a law, “to examine whether the specific legislative option” embodied in the contested rule “respects or contradicts the Constitution.”
The dissenting magistrates add that “any other operation exceeds the scope and limits of the constitutionality control that corresponds to this court.” They add, on the other hand, that “it should be noted that when this court, when carrying out the constitutionality control of the laws, reaches the conclusion that the legislator has not infringed the Constitution, its function is not to assess and declare that the law under trial it is ‘constitutional’, but rather ‘it is not unconstitutional’.
With these arguments, the conservative group supports the thesis that the Constitutional Court has exceeded its jurisdictional functions, with the aim of shielding the system of deadlines through a ruling that can consolidate a new right outside the provisions of the Magna Carta. During the deliberations, the majority group responded to this idea with the allegation that the sentence was not intended to create any right, but that it is the law that has regulated its exercise, precisely based on the constitutional text and on two of its essential values and principles. , as are the freedom and dignity of the person.
The conservative group does not share these arguments at all, and in its particular vote it maintains that in reality what the progressive magistrates have wanted is to shield the law of deadlines. In this sense, the dissenting vote affirms that it is not up to the Constitutional Court to prosecute, as the sentence does, the “term model”, in order to conclude that “this regulatory option is in accordance with our constitutional text and with the doctrine of this Court”. What the conservative judges say is that the body of guarantees, when carrying out the constitutionality control of the laws entrusted to it, does not prosecute “legal models” or “legislative options”, but rather “specific legal texts submitted to its prosecution”. His thesis is, on this point, that the appeal for unconstitutionality is directed “against laws and regulatory provisions with the force of law” or, what is the same, “against laws, regulatory provisions or acts with the force of law”, and not against “legal models”.
On the other hand, the dissenting vote considers that the abortion law “is clearly insufficient, from the perspective of the protection of prenatal life”, whose protection corresponds to the State, since the unborn child is a legal right that must be protected, according to the jurisprudence of the court itself since its ruling in 1985 on the law that allowed the voluntary interruption of pregnancy in cases or with specific indications. The magistrates of the conservative bloc consider, in short, that the sentence, “by prosecuting, improperly, not some specific challenged legal precepts, but a certain ‘legal model’, intends to send an unacceptable forward-looking message”, that the new law on abortion, approved last February, “maintaining the deadline model, will not deserve censorship of unconstitutionality if it is challenged.”
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