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The Constitution will establish the scope of conscientious objection to abortion

2023-02-02T04:54:05.980Z


The progressive majority is open to interpreting the article of the law, as the speaker proposes, to make it clear that any health worker who participates in any phase of the process may refuse to do so


The Constitutional Court will endorse in the coming days the abortion law of 2010, which established the model of deadlines in which the woman has the right to terminate her pregnancy in the first 14 weeks of gestation without having to meet requirements or give explanations. .

The sentence paper, prepared by the magistrate of the conservative sector Enrique Arnaldo, proposes to declare the bulk of the law constitutional;

and, moreover, the progressive majority of the court is determined to endorse it.

There are only two pending fringes, according to court sources: one, the one referring to the only aspect that the speaker considers unconstitutional: Arnaldo believes that the information given to the woman who decides to abort (explaining the existing alternatives, public aid for maternity, etc.) must be verbal, not in writing and in a sealed envelope as established by that law.

This proposal is rejected by the progressive magistrates, for which reason it will foreseeably be knocked down.

Secondly, the paper states that the section on conscientious objection by doctors should be considered constitutional as long as it is interpreted in this way: understanding that this right should be extended to all professionals who in one way or another have to intervene in the procedure followed to carry out the termination of pregnancy,

not just those who perform abortion.

The progressive majority of the court is willing to accept this qualification, according to sources from the Constitutional Court.

The law literally says this about the objection: "Health professionals directly involved in the voluntary interruption of pregnancy will have the right to exercise conscientious objection without the access and quality of care of the provision being undermined by the exercise of the objection of conscience”.

What Arnaldo proposes and is willing to support the progressive sector is to make it clear that those "directly involved" health workers are not only those who perform the abortion, but all those who intervene at any stage of the procedure (previous medical reports, assistance to the woman who is going to abort, subsequent collection of biological remains, etc.), and that, therefore, all of them may invoke conscientious objection and refuse to do this work.

The draft sentence that Arnaldo has distributed to the rest of the magistrates only raises the possible unconstitutionality of two sections of article 17 of the law, related to the information that must be provided to the pregnant woman who decides to abort.

In the opinion of the rapporteur of the sentence, said information should not only be in writing, but also verbal, so that it is absolutely clear.

Sources from the progressive majority of the court believe, on the other hand, that it makes no sense to annul the legal provision that has been applied for the last twelve years regarding the information that must be provided to the woman who wants to terminate her pregnancy.

The reason for this rejection of the draft ruling proposal stems from the fact that the Constitutional Court is not a legislative body, called upon to make up for hypothetical deficiencies in a law.

The majority thesis is that the type of information that has been given to pregnant women does not violate any constitutional right.

It is the task of the legislator, in any case, to improve how it is provided if he considers that it can be completed.

On the other hand, the sources consulted highlight that the pregnant woman not only receives written information, but that she can request a verbal extension if she needs it.

They also emphasize that no woman could be forced to listen to any presentation about the intervention she is going to undergo, if she does not wish to.

The draft sentence, therefore, should be modified in terms of the claim that article 17 of the abortion law be declared unconstitutional, in its sections 2 and 5, since —except for unexpected modifications of criteria in the deliberation of the sentence— this proposal will not receive majority support.

It is up to the rapporteur to accept the decision of the majority and reflect it in the ruling or resign from his role as drafter of the resolution.

In both cases, he can then carry out a private vote in which to collect the reasons for his discrepancy with the final text of the sentence.

The progressive block of the Constitutional has fewer objections to accepting another point of the law on which Arnaldo has made a "compliant interpretation."

This expression refers to the validity of a precept as long as it is interpreted as indicated in the ruling.

In this case it is that the right to conscientious objection of doctors is understood to be extensive to all professionals who in one way or another have to intervene in the procedure that is followed to carry out the interruption of the pregnancy.

parental permission

The majority sector of the court also sees positively that the sentence does not contain references to a particularly controversial aspect of the regulation on the right to abortion, such as the obligatory nature or not of parental permission for minors, between 16 and 18 years of age, who want to terminate their pregnancy.

The PP reintroduced the need for this authorization into the law, and, therefore, the rapporteur for the ruling has considered —agreeing in this with the magistrates of the progressive sector— that in this extreme there has been a loss of purpose.

If the new legislation on this matter, which is now being processed by Parliament, once again abolishes the obligation of said permit, there will be the possibility of a new challenge,

In the plenary session that decides on the appeal of the PP on the abortion law, the magistrate of the conservative sector Concepción Espejel will not participate, on the other hand.

Five former deputies of the PP who signed the appeal presented in 2010 have challenged it, and have also asked that the president of the Constitutional Court, Cándido Conde-Pumpido, and the magistrates Juan Carlos Campo and Inmaculada Montalbán not intervene in the ruling.

The request stems from the fact that their impartiality could be questioned because they have taken sides in this matter, based on the opinions they have expressed on various occasions.

Espejel is the only one of the four who has agreed to abstain.

As a member of the General Council of the Judiciary, he signed a dissenting opinion on the abortion law in which it was stated that "from the action of the State, it is possible to expect, in this matter, not a neutral action, but actively guided by a purpose to protect the life of the conceived”.

Said action —she added— “requires from the public powers a decidedly dissuasive attitude towards carrying out the voluntary interruption of pregnancy”.

Espejel's abstention has to be accepted by the plenary of the court, which in principle will not put up obstacles to it.

The sources consulted estimate that the challenges against the other three magistrates will be rejected outright for two reasons.

In the first place, because the initiatives that are directed en bloc against a group of magistrates never pass the filter if it is understood that by challenging them the aim is not to decimate the composition of the court, but to make its action unfeasible, which requires the intervention of at least three quarters of its members.

Now the Constitutional Court has 11 members —since the substitute for the conservative magistrate Alfredo Montoya has not been appointed—, so there must be at least eight of its components in plenary session.

If the challenges were successful, therefore, there would be no quorum and the sentence on the abortion law could not be passed.

Secondly,

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Source: elparis

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