The Constitutional Court has endorsed on Tuesday in full the abortion law of 2010 in a sentence in which it defends respect for "freedom and dignity" of women as an essential principle that must prevail. The ruling – which went ahead by seven votes in favor (those of the magistrates of the progressive group) and four against (those of the conservative sector) – thus rejects the appeal presented 13 years ago by the PP. The ruling on the abortion law is the one that has been delayed the longest in the history of the court, which parked the deliberation of this matter for more than a decade when it found that there was no consensus in its breast. After the renewal of the Constitutional Court in January, it began to have a majority of progressive magistrates, who have unblocked the sentence. The endorsement of the model of abortion deadlines – which enshrines the right of women to interrupt their pregnancy in the first 14 weeks of gestation without having to meet any requirement – has thus divided the guarantee body: seven votes in favor and four against.
EL PAÍS has had access to a large part of the sentence, which has not yet been disseminated. The court considers that to resolve the fundamental conflict posed by abortion – between the rights of the pregnant woman and those of the unborn, who according to the jurisprudence of the Constitutional Court does not have the right to life, but is a legally protected good – it must apply "the technique of weighting". "And verify," it adds, "whether the regulation of the voluntary interruption of pregnancy carried out by the contested rules constitutes a proportionate limitation of the rights and goods in conflict." The ruling responds that the law did adopt a solution in accordance with the Constitution: "The voluntary interruption of pregnancy, insofar as it presupposes the freedom of the woman to adopt a vital decision of the utmost importance, enjoys a first constitutional protection through the recognition of freedom as the highest value of the legal system, and the principles of dignity and free development of their personality, which constitute the foundation of political order and social peace," he reasons.
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The Constitutional Court endorses the law of abortion deadlines
The court states that any restriction on the freedom of women to make a decision for themselves that is transcendental in their lives and compromises their vital development "affects their freedom, proclaimed as the highest value of the legal system in article 1.1 of the Constitution". For the guarantee body, this provision implies "the recognition [...] of the autonomy of the individual to choose among the various life options presented to him, according to his own interests and preferences".
In this sense, the ruling maintains that pregnancy, childbirth and motherhood "indisputably condition the woman's life project." It adds 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." The court adds that dignity means "the right of all persons to treatment that does not contradict their condition of being rational, equal and free, capable of determining their conduct in relation to themselves and their environment, that is, the capacity for conscious and responsible self-determination of their own lives."
The Constitutional Court also affirms that in its jurisprudence it has recognized that freedom of procreation is one of the manifestations of the free development of personality. It adds that, accordingly, the legislature cannot fail to draw inspiration from respect for the dignity of women and the abovementioned principle of the free development of personality when regulating the voluntary interruption of pregnancy. And he emphasizes that "these principles would be clearly ignored if the pregnant woman were imposed, in absolute terms, the culmination of the pregnancy itself and the consequent birth."
In the same vein, the court reasoned that the right to humane treatment protects the inviolability of the person. Not only "against attacks aimed at injuring their body or spirit" but also "against any kind of intervention in those goods that lacks the consent of their owner" against "any interference" that is conceived as action of third parties "on the bodily or spiritual substrate of the person". The ruling then insists that the right to individual self-determination protects "the essence of the person as a subject with free and voluntary decision-making capacity," so it is violated "when the individual is mediated or instrumentalized, forgetting that every person is an end in itself."
The court also argues that pregnancy is "a biological process of the utmost importance" for the woman's body, because it involves substantial alterations "of a morphological and physiological nature" that affect various body systems, from endocrine to respiratory, through digestive, circulatory and immunological. In turn, childbirth "constitutes a complex physiological event, naturally painful and risky", which in most cases "demands the practice of some type of surgical intervention". The court emphasizes, in short, that "with regard to the moral or spiritual aspect of personal integrity, the decision about the continuation of pregnancy or its interruption constitutes, with all evidence, a question of profound vital relevance".
The ruling concludes that respect for women's fundamental right to physical and moral integrity (article 15 of the Constitution), in connection with their dignity and the free development of their personality (article 10), "require the legislator to recognize an area of freedom in which women can reasonably adopt, autonomously and without coercion of any kind, the decision it considers most appropriate as to whether or not to continue the pregnancy". The court also emphasizes that it is necessary to protect the rights of women who, "faced with the exclusively female situation that is pregnancy, from which historically, and still to date, derive notorious inequalities with men, decide to interrupt it freely and within the assumptions and conditions established by the law itself. "
The Constitutional Court does not rule on the need or not of parental permission for young women of 16 and 17 years who decide to abort. The court has considered that the appeal lost purpose on this point, given the reform with which the Government of Mariano Rajoy reintroduced parental leave in 2015, although subsequently that leave has been again removed from the law in the recent reform of February. Sources of the body of guarantees add that the issue would only be reconsidered if that last legal reform, that of February, were to be appealed again on this issue of abortion of minors under 18 years of age.
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