The Constitutional Court affirms in its ruling on abortion that prenatal life is not left unprotected by the endorsement it has given to the law on voluntary termination of pregnancy, consecrating the system of deadlines as fully adjusted to the Magna Carta. Faced with the theses of the appeal of the PP and the criticisms of the magistrates of the conservative block, the court reasons that, on the contrary, said system of deadlines is a guarantee for the protection of the legal good of the nasciturus [el concebido pero no nacido]by setting times and establishing requirements, outside of which abortion can fit in criminal figures that subsist.
However, the sentence makes very clear the difference between prenatal life and person. In this sense, the text emphasizes that the court “has unequivocally affirmed that the ownership of the right to life proclaimed by article 15 of the Constitution corresponds exclusively to those who were born and have, by the fact of birth, full legal personality, without being able to extend this ownership to those who have been conceived but have not yet been born.
The ruling reasons in this sense that “who is not a person cannot be, is not, holder of rights, nor, therefore, of fundamental rights.” The Constitutional considers, therefore, in the case of prenatal life: “We are not, therefore, before the fundamental right itself, but before a constitutionally protected legal right.” He adds that this concept of prenatal life conforms to the international treaties ratified by Spain.
The court explains that international texts attribute ownership of the right to life and the other rights proclaimed therein to the “person.” In this sense, the guarantee body affirms that neither from the literalness of the aforementioned texts, nor from the arguments of the appeal of the PP, nor from international jurisprudence and practice, it can be concluded that there is sufficient grounds to deduce an obligation of the States to recognize “the entitlement of the fundamental right to life to the nasciturus”.
The ruling also mentions that the European Commission of Human Rights ruled on this issue for the first time in its decision of May 13, 1980, regarding the admissibility of a specific case concerning the United Kingdom, in which there was a risk to life. or health of the pregnant woman (medical indication). The court emphasizes that at that time the Commission declared, in terms similar to the pronouncements that in 1985 would be included in the sentence issued by the Constitutional Court itself on the system of indications for the legal practice of abortion, that “it was not possible to recognize the fetus as a right to life (…) in an absolute sense, a right that can only be fully recognized in those born”.
The court also highlights that the European Court of Human Rights has affirmed that there is no European consensus on the scientific and legal definition of the beginnings of life, nor on the nature or status of the embryo or fetus, therefore “the point The starting point of the right to life falls within the margin of appreciation of the States”.
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The Constitutional also reasons that “according to the above, respect for the fundamental right of women to physical and moral integrity (article 15 of the Constitution), in connection with their dignity and the free development of their personality (article 10.1 of the same text), demand from the legislator the recognition of an area of freedom in which the woman can reasonably adopt, autonomously and without coercion of any kind, the decision that she considers most appropriate regarding the continuation or not of the pregnancy ”.
The ruling considers that respecting that minimum scope that guarantees women a reasonable exercise of their rights, it is up to the legislator to determine the way in which the constitutional rights of women must be limited “in order to protect prenatal life, as a constitutional right protected, always taking into account that ‘any act or resolution that limits fundamental rights must ensure that the limiting measures are necessary to achieve the end pursued’”, as the court has said in various resolutions.
Abortion, only in exceptional cases
Referring to the terms in which the voluntary interruption of pregnancy is legally possible, the court defends the proportionality of the law, and affirms that “from the moment of fetal viability, a clear priority is given to the protection of prenatal life on the constitutional rights of women, which are understood to have been sufficiently guaranteed through the options granted to the pregnant woman prior to that moment”. From there, “termination of pregnancy is only allowed in absolutely exceptional cases in which, either it is not possible to speak of prenatal ‘life’ in the proper sense, given the lack of viability of the fetus, or there is a very serious compromise not only of the rights of the pregnant woman but also of the physical and moral integrity of the fetus itself”.
The court also underlines that “the deadline model supposes not only a mechanism for the protection of prenatal life, but also, and reciprocally, a restrictive measure of the rights of women.” The ruling argues that said restriction translates into the requirement that, after the fourteenth week of gestation, there are additional circumstances to the free will of the woman for the legal interruption of the pregnancy. This limitation —continues the ruling— is constitutional “because it obeys the legitimate purpose of protecting prenatal life”, and is adjusted “to the canon of proportionality required by this Court for the constitutionality of any limitation of fundamental rights, as well as the gradual model of protection of prenatal life accepted by sentence 53/1985 itself.
For this reason, the ruling rejects the appeal’s argument on the “absolute prevalence” that in the PP’s opinion the abortion law grants to the constitutional rights of women. The court considers in this regard that “the legislator has chosen to limit the right of women to decide freely about their own bodily substrate and their life project, to the first 14 weeks of gestation, the period in which prenatal life is still in a very embryonic state and, consequently, hypothetical or potential”.
The sentence reiterates that “based on this, it cannot be affirmed in any way that the law, given the conflict between fundamental rights and legal rights that the voluntary interruption of pregnancy generates, has given absolute precedence to the constitutional rights of women.” In the court’s opinion, what the legislator does is define “the minimum scope that he considers ‘reasonable’ for the woman to have a real and effective opportunity to enforce her constitutional rights.” Consequently, the court considers that “the legal design of a gradual guardianship of prenatal life correlative to a gradual limitation of the fundamental rights of women” is “fully adjusted to the Constitution.”
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