Plenary session of the Constitutional Court on January 24.
On the left, in the background and in a gray jacket, Enrique Arnaldo, rapporteur for the ruling on the abortion law. Alberto Ortega (Europa Press)
The plenary session of the Constitutional Court —composed on this occasion by seven magistrates from the progressive sector and three from the conservative— will meet this Tuesday, February 7, to try to finally agree on a sentence on the appeal that has been waiting the longest for a resolution in the drawers of the court: the one that presented the PP against the abortion law of 2010. The magistrates will debate on the basis of the paper (draft sentence) that has been prepared by magistrate Enrique Arnaldo, from the conservative sector.
In this presentation, Arnaldo makes an unequivocal defense of the essence of the law —the term model, which recognizes the right of women to abort in the first 14 weeks of pregnancy without giving explanations or having to meet requirements— and only appreciates its unconstitutionality in a subject:
The rapporteur, who came to court in November 2021 at the proposal of the PP, asks to avoid in this case "moral judgments, which are essentially very personal."
"It is not a matter of responding to a conflict between Law and morality, but of deciding whether or not a certain law is in accordance with the Constitution, and in that resolution there is no other support for the Constitutional Court than the Supreme Standard itself" he stresses.
"It is a strictly legal conflict, which must be resolved using legal criteria."
What follows is a summary of the 91 pages of the presentation, to which EL PAÍS has had access:
The conflict between the 'nasciturus' and the mother
The main argument of the appeal of the PP was that the model of deadlines is, in practice, a model of free abortion, because during the first 14 weeks of pregnancy it strips the
(the one conceived and not yet born) of any protection.
In this way, according to the PP, article 15 of the Constitution is violated —which establishes in an ambiguous way that "everyone" has the right to life— and also violates the Constitutional sentence that in 1985 endorsed the law of assumptions of the Government of Felipe González.
That sentence forced to ponder two duties: protect the
and respect the fundamental rights of women.
When the assumptions and therefore the requirements disappear, the PP maintained, there is no longer any weighting: only the rights of women count.
The PSOE will register today without United We Can the proposal to reform the 'law of only yes is yes'
Judge Arnaldo, citing his own ruling of 1985 and others of the court, makes one issue clear in the first place: "In our legal system, in accordance with the doctrine established by the Constitutional Court, the
is not the holder of the right to life" .
Only the born —as persons— are holders of this right.
Yes, it is a "constitutionally protected legal right."
And this "state's duty to protect prenatal life" is manifested "in two basic obligations: "to refrain from interrupting or hindering the natural process of gestation, and to establish a legal system for the defense of life that supposes an effective protection of the same and that, given the fundamental character of life, also includes, as a last guarantee, the penal norms”.
Federico Trillo and other PP deputies in 2010, after presenting the appeal against the abortion law before the Constitutional Court.Uli Martín
But the fact that the State has the duty to protect the
, maintains the speaker, does not necessarily mean that it should do so by establishing criminal sanctions.
Neither article 15 nor any other of the Constitution imposes “the criminalization of abortion”, he points out.
And that the 1985 ruling endorsed the model of assumptions does not mean "that the Constitution excludes others."
To support his thesis, Arnaldo cites this sentence from that first sentence on abortion: "Human laws contain patterns of conduct in which, in general, normal cases fit, but there are singular or exceptional situations in which non-compliance can be punished criminally." of the Law would be totally inappropriate”.
Criminal proceedings are not the only
If it is not essential to resort to criminal proceedings, what other way is there to guarantee that the due protection of the
is produced by the State?
The magistrate responds: the formula established by the legislator in 2010 is that "protection of prenatal life" during the first 14 weeks of gestation "is articulated through two ways: information to pregnant women about their rights, public benefits and aid for maternity and a reflection period of at least three days from the receipt of this information”.
“All of this aimed at favoring a conscious and thoughtful decision of the woman in resolving the conflict”, he points out.
And that formula, says Arnaldo, is "reasonably sufficient" and, therefore, perfectly constitutional: "The legislator weighs the conflicting interests and articulates an alternative protection model to criminal law [...] understanding that in this first phase of pregnancy, in which the life in formation is completely dependent on the life of the mother, has more chances of protecting the unborn child when he acts with the mother and not against her”, elaborates Arnaldo.
"The intervention of a third party that confirms the existence of a conflict and ponders the conflicting values is not a constitutional requirement," insists the paper.
"Furthermore," he concludes, "the determining intervention of a third party would distort a system in which it is essential that the final decision be in the hands of the woman and that the intervention of third parties be articulated at the time of counseling and not at the time of the decision".
The information, verbal.
And the period of reflection, essential
The paper includes, however, an important nuance to this declaration of constitutionality of the deadline model: this is constitutional, points out Arnaldo, because there is this protection for the
by informing the woman of all the alternatives to abortion and giving her a three day cooling off period.
Therefore, this is a “necessary” requirement, because “otherwise it would not be possible to truly speak of informed consent”.
The current Government of PSOE-Unidas Podemos has eliminated the requirement of prior information to the woman and the three days of reflection (in a specific reform of the law that is about to be approved), but that is outside the scope of this sentence, which refers exclusively to the 2010 law, which was approved by the Executive of José Luis Rodríguez Zapatero.
"Personalized, sufficient, clear and understandable information for the pregnant woman about the points indicated, and a period of reflection appear as inseparably linked requirements and constitute the necessary prerequisite for the woman to be able to freely, consciously and thoughtfully adopt a decision about the interruption or not of her pregnancy, in a manner compatible with the right to protection of prenatal life”, argues the paper.
"To the extent that the contested article 14 of the Organic Law 2/2010 establishes these requirements [...] it must be concluded, as we have already indicated, that the precept cannot deserve constitutional reproach, since the legislator's solution, which determines the waiver of criminal protection during that period, rests on an adequate consideration of the goods and rights in conflict.
Demonstration in Valencia on March 8, 1992, demanding a model of deadlines in the abortion law. Santiago Carreguí
And in relation to this issue of information to pregnant women, the only unconstitutional element of the law occurs, according to Arnaldo: the speaker maintains that the information "has to be provided verbally, as a general rule, leaving a record in the clinical history, and must understand, as a minimum, the indication of the purpose and nature of each intervention, its risks and its consequences, as well as the medical, psychological and social consequences of the continuation of the pregnancy or its interruption”.
That is so, says the magistrate, because the 2010 abortion law refers at this point to the 2002 patient autonomy law, and that rule establishes that the information provided to the patient must be verbal, "as a general rule."
Thus, Arnaldo proposes declaring the last paragraph of article 17 “unconstitutional and void”.
It is not clear, however, whether the paper establishes that only information referring to the medical risks of the intervention should be given verbally or also information about alternatives to abortion and public assistance for maternity.
Sources from the progressive sector of the Constitutional interpret the latter, and for this reason they refuse to accept this proposal by the speaker.
Parental permission for minors
The presentation does not pronounce on one of the controversial aspects of the 2010 law: the right of women aged 16 and 17 to abort without having to have their parents' permission.
And it does not do so because, in 2015, the law was modified on that point: the Government of Mariano Rajoy reintroduced the obligation of parental permission, and therefore, says Arnaldo, there has been a "supervened disappearance of the object of this appeal" in that particular point.
The paradox is that precisely this article of the law is now about to be modified again in the opposite direction: the Government has once again eliminated the need for parental permission in those cases of women aged 16 and 17.
But Arnaldo already warns that this does not change the premise: "The general rule in the appeal of unconstitutionality," he stresses, "is that it would be meaningless [...] for this court to rule on rules that the legislator himself has already expelled of said ordinance in a total way [...], without exception to this rule due to the fact that the legislator subsequently restores it in terms similar to those that appeared in the initial version of the legal text that was the subject of the unconstitutionality appeal” .
Abortion for fetal abnormalities
In its 2010 appeal, the PP not only rejected the term model for abortion, but also maintained that fetal malformation had to cease to be a legal assumption to allow a woman to terminate her pregnancy.
To argue this, the popular ones equated the abortion of a fetus with "serious anomalies" to the Nazi extermination and sterilization laws, and denounced that it involved a "discrimination" of the
similar to discrimination based on race.
They also affirmed, referring to the 1985 ruling, that this legal assumption could have made sense at a time when the State did not have sufficient means to care for people with severe disabilities, but now (in 2010), with many more media and a Dependency Law, there was no place for that "discrimination".
The draft sentence flatly rejects these arguments.
Arnaldo insists that the
"He is not the holder of the right to life or any fundamental right": neither to equality nor to non-discrimination.
And no national or international regulations are applicable to it.
Regarding the fact that the development of the assistance measures of the State have made this assumption unnecessary, he also rules it out: "Even if the assistance aspect were covered (something that is not proven in the appeal and is not evidence that does not need accreditation, nor can be assessed in this unconstitutionality procedure), this would mean ignoring all the other aspects that are not merely care-giving that maternity implies in such circumstances, and that make the imposition under criminal threat of the continuation of the pregnancy unenforceable”, she emphasizes.
Arnaldo does add a nuance to the constitutionality of article 15 again in the section that authorizes abortion, without a term limit, for "extremely serious and incurable disease" of the fetus: this specific case must be considered constitutional as long as it is understood that "does not authorize the practice of abortions on viable fetuses for the mere fact of presenting some type of physical, mental, intellectual or sensory disability."
"This excludes," he says, "that the abortion of fetuses that present some type of disability can be understood to be lawful" outside the legal deadlines.
Finally, the PP appealed to article 15 of the law in another aspect: the section that allows abortion up to 22 weeks of gestation if there is a "serious risk to the life or health of the pregnant woman."
The popular ones understood that another article of the law, the 2, opened the door to that within the concept "risk for the mother's health" an indeterminate "social health", not objectifiable, was included.
The presentation concludes that this is a mere baseless hypothesis of the appellants.
“The term 'health' refers to physical or mental health, as can be clearly deduced from parliamentary debates.
Thus understood, article 15 a) of the Organic Law 2/2010 is not unconstitutional”, replies Arnaldo.
Concentration of the Right to Live platform last April next to the Senate, to protest against the legal reform that penalizes the harassment of women who go to clinics where abortions are performed. Javier Lizón (EFE)
Conscientious objection, more defined
The paper does not accept either the PP's criticism of the regulation of conscientious objection by doctors (their right to refuse to perform abortions for religious or conscientious reasons) included in the 2010 law. But it does suggest better delimiting its scope.
The law says, in its article 19.2, that "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 being impaired."
This article, the draft sentence indicates, is constitutional as long as it is interpreted in this way: "That it does not refer exclusively to the professionals who carry out the practice of the intervention itself in the centers of the public health network or in the accredited,
but it also includes the health professionals involved in the previous actions of the process that leads to the interruption of the pregnancy for medical reasons referred to in arts.
15 and 16 of the Organic Law 2/2010 [that is, the elaboration of medical opinions to determine the anomalies of the fetus] and that does not exclude others that may have a subsequent implication, such as those in charge of collecting and destroying the remains derived from the practice of abortion.
Health training with a “gender perspective”
The appeal of the PP questioned the articles of the law that force the introduction of the "gender perspective" in the training of toilets, considering it an ideological imposition.
The paper rejects that criticism.
“The 'gender perspective'”, affirms the draft sentence, “cannot be understood as an ideology, but as a methodological approach, which means taking into account the singularities of men and women in the design and execution of public policies with the aim of promoting effective and real equality between women and men and eliminating inequalities that constitute discrimination based on sex”.
A forceful defense of the term model
The paper written by Enrique Arnaldo is full of affirmations in defense of the deadline system as a fully constitutional model to regulate abortion.
The magistrate begins by remarking that this model "is in line with the laws on voluntary interruption of pregnancy in the countries around us, whose Constitutions, by the way, recognize and guarantee the right to life in terms similar to those of the Spanish Constitution ”.
And he rejects the interpretation made by the PP, that is, that the 1985 Constitutional ruling closed the door to any model that was not that of decriminalized assumptions: "The Constitution is not a closed program, but an open text," says Arnaldo , and adds that, “without prejudice to the importance of this doctrine”,
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