The four magistrates of the conservative sector of the Constitutional Court consider that the body of guarantees has incurred in its ruling on abortion in "an evident excess" because "it comes to recognize a new right" that it has called "the right of women to self-determination regarding the interruption of pregnancy." The individual vote shared by the members of the conservative group of the court considers that this right does not appear in the Constitution and that there has thus been an "overflow" of the control work that corresponds to it. They also argue that the progressive majority has acted in a contradictory way by resolving some aspects of the PP resource without entering others.
Magistrates Ricardo Enríquez, Concepción Espejel, Enrique Arnaldo and César Tolosa criticize, in this sense, that the obligatory nature of parental leave for minors aged 16 to 18 who want to abort has not been addressed and yes, on the other hand, the system of information to pregnant women has been endorsed until now, when the recent reform of the legislation on interruption of pregnancy changed the regulation of this aspect in February. The conservative sector does not share that in the first case it has been avoided to enter into the substance of the matter with the argument that it lost object, because the PP again made such parental leave mandatory, but that instead now that the law has left without effect the regulation of information to the surrogate has not applied the same criterion, This has allowed the court to uphold the 2010 law on that point as well.
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What the conservative sector raises about this law is that it provided deficient, incomplete information to the pregnant woman, and that therefore the regulation of the voluntary interruption of pregnancy during the first 14 weeks of gestation could be considered unconstitutional for not adopting sufficient guarantees of protection the unborn, in a correct weighing of rights and legal rights affected. The dissenting vote will therefore support the thesis that the legislation on abortion must always contemplate exhaustive information to the pregnant woman who wants to interrupt her pregnancy, so that she knows precisely the intervention to which, if any, she is going to submit, and the alternatives that could be available if she decides not to carry it out.
The four magistrates cited consider that the doctrine of the Constitutional Court ruling of 85 – which endorsed abortion in certain cases, with indications – "contains two fundamental statements that in no way can be considered superseded." In the first place, that "neither the protection of the unborn child can absolutely prevail over the rights of the woman, nor the rights of the latter can have absolute primacy over the life of the unborn child." And secondly, since the unborn child is a legal right constitutionally protected by article 15 of the Constitution – which proclaims that "everyone has the right to life" – "the State has the obligation to establish a legal system for the defense of life that, given its fundamental nature, may also include as a last guarantee the punishment of those behaviors contrary to its preservation". To this the magistrates of the progressive sector have responded during the debates of the ruling that the system of deadlines is precisely a guarantee.
In any case, the conservative bloc has remained clinging to the thesis that this sentence incurs a basic problem, being outside the margins of control of constitutionality that the court has attributed, because "recognizing new fundamental rights is a power of the constituent power, not of the constituted powers and, therefore, it is not the Constitutional Court's." Along the same lines, the dissenting judges understand that the court has shielded itself in "a misunderstood evolutionary interpretation" of the questioned norms.
On this point, the ruling issued by the Constitutional Court argues that "the normative treatment of the voluntary interruption of pregnancy" has undergone "a profound evolution" in developed societies. In this way, he adds, we have moved "from the strict criminal punishment of abortion with severe sanctions to systems of regulation of the voluntary interruption of pregnancy as a subjective public right of women and health care, trying to find a balance between respect for the rights and legitimate interests of women and the protection of prenatal life."
The particular vote of the conservative sector will be collective, signed by its four members, but Judge Concepción Espejel will limit it with her own differentiated arguments, in a kind of concurrent vote, according to the theses of her colleagues, but with "additional reasons" of discrepancy with the sentence. Espejel is more emphatic in the terms of her criticism of the ruling, considering unconstitutional the system of deadlines as regulated by the 2010 law, because "it imposes an interpretation in the most favorable way to the fundamental rights of women with omission of any protection of the unborn." In the opinion of the aforementioned magistrate, this regulation "leaves to the exclusive discretion of the woman the interruption of pregnancy in the first 14 weeks with total disprotection of human life in formation, which is a constitutionally protected good," as the court declared in its judgment of 85.
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