Pro-abortion demonstration in Madrid in September 2017.getty
The Constitutional Court affirms in its ruling on abortion that prenatal life is not unprotected by the endorsement it has given to the law on voluntary interruption of pregnancy, consecrating the system of deadlines as fully adjusted to the Magna Carta. Faced with the theses of the appeal of the PP and the criticisms of the magistrates of the conservative bloc, the court reasons that, on the contrary, said system of deadlines is a guarantee for the protection of the legal good of the unborn [the conceived but unborn], by setting times and establishing requirements, outside of which abortion can fit into criminal figures that subsist.
However, the sentence makes very clear the difference between prenatal life and person. In this regard, the text emphasizes that the court "has unequivocally affirmed that the ownership of the right to life proclaimed by article 15 of the Constitution corresponds exclusively to those who were born and have, by the fact of birth, full legal personality, without it being possible to extend this ownership to those who have been conceived but have not yet been born."
The ruling reasons in this sense that "who is not a person cannot be, is not, holder of rights, nor, therefore, of fundamental rights." The Constitutional Court considers, therefore, in the case of prenatal life: "We are not, therefore, before the fundamental right itself, but before a constitutionally protected legal good". It adds that this concept of prenatal life is in line with the international treaties ratified by Spain.
The court explains that international texts attribute ownership of the right to life, and the other rights proclaimed therein, to the "person". In this sense, the body of guarantees affirms that neither the literalness of the aforementioned texts, nor the argumentation of the appeal of the PP, nor the international jurisprudence and practice can be concluded that there is sufficient basis to deduce an obligation of the States to recognize "the ownership of the fundamental right to life to the unborn".
The judgment also mentions that the European Commission of Human Rights ruled for the first time on this issue in its decision of 13 May 1980 concerning the admissibility of a specific case concerning the United Kingdom, in which there was a risk to the life or health of the pregnant woman (medical indication). The court emphasizes that at that time the Commission declared, in terms analogous to the pronouncements that in 1985 would be included in the judgment issued by the Constitutional Court itself on the system of indications for the legal practice of abortion, that "the fetus could not be recognized as having a right to life (...) in an absolute sense, a right that can only be recognized in all its breadth to those born".
The court also highlights that the European Court of Human Rights has affirmed that there is no European consensus on the scientific and legal definition of the beginnings of life, nor on the nature or status of the embryo or fetus, so that "the starting point of the right to life falls within the margin of appreciation of States".
The Constitutional Court also states that "in accordance with the foregoing, 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 10.1 of the same text), 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 ruling considers that respecting this minimum scope that guarantees women a reasonable exercise of their rights, it is up to the legislator to determine the way in which the constitutional rights of women should be limited "in order to protect prenatal life, as a constitutionally protected good, always taking into account that 'any act or resolution that limits fundamental rights must ensure that the limiting measures are necessary to achieve the end pursued'". as the Court has said in various decisions.
Abortion, only in exceptional cases
In reference to the periods in which it is legally possible to voluntarily interrupt pregnancy, the court defends the proportionality of the law, and states that "from the moment of fetal viability, a clear priority is given to the protection of prenatal life over the constitutional rights of the woman, which are understood to have been sufficiently guaranteed through the options granted to the pregnant woman prior to that moment". From there "the interruption of pregnancy is only allowed in absolutely exceptional cases in which, either it is not possible to speak of prenatal 'life' in the proper sense, given the lack of viability of the fetus, or there is a very serious compromise not only of the rights of the pregnant woman but also of physical and moral integrity of the fetus itself. "
The court also emphasizes that "the model of deadlines supposes not only a mechanism of protection of prenatal life, but also, and reciprocally, a measure restricting the rights of women". The ruling argues that this restriction translates into the requirement that, after the fourteenth week of gestation, there are additional circumstances to the free will of the woman for the legal interruption of pregnancy. This limitation, the judgment continues, is constitutional "because it obeys the legitimate purpose of protecting prenatal life", and is adjusted "to the canon of proportionality required by this Court for the constitutionality of any limitation of fundamental rights, as well as to the gradual model of protection of prenatal life welcomed by judgment 53/1985 itself".
For this reason, the ruling rejects the argument of the appeal on the "absolute prevalence" that in the opinion of the PP grants the abortion law to the constitutional rights of women. The court considers in this regard that "the legislator has chosen to limit the right of women to decide freely about their own bodily substrate and their life project, to the first 14 weeks of gestation, a period in which prenatal life is still in a very embryonic state and, consequently, hypothetical or potential".
The ruling reiterates that "based on this, it cannot be affirmed in any way that the law, in the face of the conflict between fundamental rights and legal rights that the voluntary interruption of pregnancy generates, has given absolute precedence to the constitutional rights of women." In the opinion of the court, what the legislator does is define "the minimum scope that it considers 'reasonable' so that women have a real and effective opportunity to assert their constitutional rights." Consequently, the court considers that "the legal design of a gradual guardianship of prenatal life correlative to a gradual limitation of the fundamental rights of women" is "fully in accordance with the Constitution".
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