• Justice The Constitutional Court recognizes the right to abortion with four votes against
  • Appeal The Constitutional Court endorses Zapatero's abortion law and appoints Vice President Montalbán as a new rapporteur

"We consider that the voluntary interruption of pregnancy, as a manifestation of the right of women to make decisions and free and responsible choices, without violence, coercion or discrimination, with respect for their own body and life project, is part of the constitutionally protected content of the fundamental right to physical and moral integrity in connection with the dignity of the person and the free development of his personality as guiding principles of the political order and social peace'. With this argumentation, the Plenary of the Constitutional Court validated yesterday, 13 years after the filing of the appeal of unconstitutionality by the Popular Party, the law of voluntary interruption of pregnancy approved by the Government of José Luis Rodríguez Zapatero in 2010. But the High Court not only endorsed the system of deadlines currently in force but also went a step further by enshrining for the first time the right of Spanish women to abortion.

The sentence, presented by Vice President Inmaculada Montalbán, to which EL MUNDO has had access, maintains that the woman's decision to interrupt her pregnancy is covered by Article 10.1 of the Constitution that enshrines "the dignity of the person" and the "free development of personality", as well as Article 15 of the Magna Carta, which guarantees the fundamental right to physical and moral integrity.

Similarly, the resolution – supported by seven magistrates of the progressive block of the TC and on which the four members of the conservative sector will formulate individual votes – emphasizes that "pregnancy, childbirth and motherhood indisputably condition the life project of the woman". The court emphasizes that the decision to continue with the pregnancy, "with the consequences that this implies in all areas of the woman's life - physical, psychological, social and legal - links directly with her dignity, understood by this court as the right of all people to treatment that does not contradict their condition of being rational equal and free, capable of determining his conduct in relation to himself and his environment, that is, the capacity for conscious and responsible self-determination of his own life".

On the right of the unborn, the resolution admits that "if the Constitution protects life as an essential fundamental right, it cannot unprotect it at that stage of its development process that is a condition for independent life." However, the court of guarantees emphasizes that "who is not a person cannot be, is not, the holder of rights, nor, therefore, of fundamental rights."

The High Court also considers that the system of deadlines guarantees the State's duty to protect prenatal life since there is a gradual limitation of the constitutional rights of women depending on the progress of pregnancy and the physiological-vital development of the fetus. "The Law articulates a model of gradual guardianship throughout pregnancy, pondering, in each of the periods, what are the limitations that it is necessary to impose on the exercise, by pregnant women, of their constitutional rights, precisely with the purpose of providing prenatal life with the protection it deserves as a constitutional good," reads the text.

"Positive obligation"

In relation to the guarantee of effective access to the voluntary interruption of pregnancy for women in Spain, the Constitutional Court stresses that the public authorities not only have the duty to respect and not infringe fundamental rights, but also the "positive obligation" to guarantee their effectiveness. That is, the resolution emphasizes that the obligation of public administrations to ensure the provision of voluntary interruption of pregnancy derives from that positive duty to ensure the effectiveness of fundamental rights. Likewise, the judgment emphasizes that "this benefit model is also in line with the jurisprudence of the European Court of Human Rights, which has repeatedly ruled that, once the legislator has decided to authorize abortion, the State is responsible for the positive obligation to create the regulatory framework and enforcement mechanisms necessary to allow pregnant women to exercise their right. to the legal interruption of pregnancy".

Similarly, the Constitutional Court emphasizes that the legislator "cannot fail to be inspired by respect for the dignity of women and the free development of personality when regulating the voluntary interruption of pregnancy." "In particular, these principles would be clearly ignored if the termination of the pregnancy itself and the consequent delivery were imposed on the pregnant woman, in absolute terms," the magistrates add.

On the conscientious objection of doctors to perform abortion, the judgment maintains that the exercise of conscientious objection should be limited to health personnel who practice direct clinical interventions, to the exclusion of other auxiliary, administrative or instrumental support actions. The resolution affirms that as an exception, conscientious objection must be interpreted restrictively, and, in any case, its exercise must be compatible with the right of women to effectively access the health benefit of voluntary interruption of pregnancy.

Individual opinion

According to legal sources, the magistrates of the conservative sector of the Constitutional Enrique Arnaldo, Ricardo Enríquez and César Tolosa will formulate a joint individual vote against the resolution, understanding that the TC "seriously exceeds" the scope and limits of the jurisdictional control that corresponds to it since it enters to resolve "unduly" on challenges to the law that have lost object as a result of the entry into entry into force of the new Abortion Act last February.

These magistrates criticize that the sentence is not limited to examining whether the regulatory option on the voluntary interruption of pregnancy embodied in the Law of deadlines of Rodríguez Zapatero was respectful of the Constitution "but, exceeding the scope and limits of the control of constitutionality that corresponds to this court, comes to recognize a new constitutional right, which he calls the right of women to self-determination with respect to the interruption of pregnancy."

"The sentence is outside the margins of the control of constitutionality that correspond to this court, since recognizing new fundamental rights is a power of the constituent power, not of the constituted powers and, therefore, it is not of the Constitutional Court," they emphasize.

For her part, magistrate Concepción Espejel, also belonging to the minority sector of the Constitutional, considers that the system of deadlines is unconstitutional and warns that the sentence does not adhere to a strictly legal interpretation on abortion "giving entry to an ideological approach tending to create a non-existent fundamental right of women to abortion that, In addition, it leaves human life in formation unprotected."

  • Abortion
  • Constitutional court

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