The draft sentence prepared by the conservative magistrate Enrique Arnaldo only proposes a reason for unconstitutionality in the current abortion law, related to the information provided to the woman who wants to terminate her pregnancy.
Arnaldo believes that the legislator must guarantee that this information is exhaustive, and he did not do so in the regulations in force, for which reason he proposes that the court annul the last paragraph of sections 2 and 5 of article 17 of the law appealed by the PP twelve years ago.
With this, the paper endorses the system of deadlines, which is what the appeal presented by the popular parliamentary group in 2010 sought to have declared unconstitutional.
Arnaldo's presentation fits, on the other hand, with the current claims of the PP, whose president, Alberto Núñez Feijóo, stressed last week that the popular no longer question the deadline system.
In fact, this change in criteria occurred during the period of the Government of Mariano Rajoy, in which said system was not changed, except to once again require parental permission for pregnant women between the ages of 16 and 18.
Until now, the difficulty in accepting the system of deadlines has been that in order to accept its constitutional legality, it was necessary to break with the Constitutional doctrine itself, set forth in the sentence that the guarantee body handed down in 1985.
The resistance of the magistrates of the conservative sector of the court to change this doctrine prevented for years the ruling on the abortion law from being discussed, because in the guarantee body itself there was full awareness of the broad social rejection that the possible annulment of the system of deadlines would have in Spanish society.
In order to overcome the problem of breaking with said doctrine of the 1985 ruling regarding the rights of the
"nasciturus",
the paper that will be debated next week in court argues that excluding the imposition of a criminal sanction on the pregnant woman who decides terminating her pregnancy during the first fourteen weeks of her pregnancy "cannot reasonably be construed as a waiver of protection of the life of the
unborn child."
Arnaldo's thesis is that the State found in the regulation of the deadline system an alternative to the criminal classification of the interruption of pregnancy.
This alternative —he explains— consists “in the demand for compulsory state intervention in the decision-making process of women, through counseling and the opening of a period of reflection, understanding that in this first phase of pregnancy, in which the life in formation is completely dependent on the life of the mother, it has a better chance of protecting the 'nasciturus' when it acts with the mother and not against her”.
Arnaldo's criticism of article 17, in its sections 2 and 5 of the abortion law derives, therefore, from the fact that the information that pregnant women who want to terminate their pregnancy must receive should not be "generic and standardized, disconnected from the purpose protection of prenatal life", but must be "rigorous, specific and qualified information, oriented towards the woman adopting a responsible and thoughtful decision".
The precepts that Arnaldo proposes to annul, in short, are those that establish that "in cases in which women opt for the interruption of pregnancy regulated in article 14, they will also receive a sealed envelope that will contain information" about the intervention to which will submit
They add that "this information must be delivered to any public health center or to accredited centers for the voluntary interruption of pregnancy", and they specify that "along with the information in a sealed envelope, a document accrediting the date of pregnancy will be delivered to the woman. Delivery.
Finally, section five establishes that "in the case of people with disabilities, it will be provided in accessible formats and media, appropriate to their needs."
Faced with this regulation, which the rapporteur considers scarce, the draft ruling reasons that "the voluntary interruption of pregnancy is not comparable to any medical act, since it poses a complex conflict between human life in formation, as a legal right worthy of protection, and the rights and legitimate interests of the pregnant woman”.
Therefore, it states that the pregnant woman who wants to terminate her pregnancy "cannot be deprived or limited in her right to receive personalized, adequate, complete and sufficient information, both on the physical and psychological consequences of carrying out the intervention, as well as on the social policies to support maternity and pregnant women”.
The paper stresses that the objective should be that women "can decide freely,
aware and responsible if you want to terminate the pregnancy or continue with the pregnancy”.
And he adds that a decision of this type must be made "after a minimum period of reflection."
The current law already provided that the information to which the speaker refers can be offered "orally, if the woman requests it."
But in Arnaldo's opinion, this is not enough, and what must be ensured is that the information "must be provided verbally" to ensure that the pregnant woman "is duly informed before adopting her decision."
As the function of the Constitutional is not to legislate, the objection of the paper to how information is transferred to the woman who wants an abortion does not impose, if approved by the court, a specific duty on the Government and Parliament on how to develop this aspect of the law, but it would leave a gap that would probably have to be reviewed in the new bill currently under parliamentary debate.
In any case,
The paper also estimates, finally, that in relation to the right to conscientious objection, not only those "directly involved" in the processes of voluntary termination of pregnancy should be included, but also all health professionals who take part in such procedures.
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