Magistrate María Luisa Balaguer criticizes that the Constitutional ruling on abortion does not qualify it as a fundamental right

The magistrate of the Constitutional Court María Luisa Balaguer has issued a concurring vote with the ruling on the abortion law in which she criticizes that the body of guarantees has not recognized it as a fundamental right of women. In its alternative text – according to the ruling, but with other arguments – it states that the total decriminalization of the voluntary interruption of pregnancy in certain cases could have full fit into the Magna Carta. Balaguer adds that the resolution issued does not shield in absolute terms the right of pregnant women to decide freely about their pregnancy and warns that any hypothetical future attempt to revise the legislation in this matter should be carried out "with extreme caution and from the perspective of the non-regressivity of rights."

In his differentiated vote, Balaguer argues that the legislator's decision to criminally prosecute the voluntary and consensual interruption of pregnancy must be analyzed as a limit to the right of women and, therefore, must be examined "from the perspective of the minimum invasion in the exercise of the right, assuming in that line the possibility of the total decriminalization of consensual abortion." Faced with the thesis of the conservative sector of the court – which has criticized with a dissenting vote the abortion ruling for creating a de facto right that does not exist in the Constitution – Judge Balaguer considers that the ruling did not go so far, when it would have had to proclaim the voluntary interruption of pregnancy as a fundamental right of women.

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In the opinion of this magistrate, professor of Constitutional Law, although the Constitutional Court has not wanted to take the sentence to its ultimate consequences, "the only possible conclusion" is that the 2010 abortion law, which defines a mixed system, of deadlines until week 14 and indications from that week of gestation, "has a place within the Constitution, The same thing that a system of total decriminalization of consensual abortion could have, if the legislator decided, at a given moment, to opt for this criminal policy option."

In her alternative text to the ruling of the Constitutional Court – which in any case Balaguer supported with her vote – the magistrate states that the court could and should have gone beyond what it has done to guarantee essential principles and rights of the Constitution, such as the freedom and self-determination of women to decide on their own bodies. And he launches this warning about the possibility of going back: "The legal and jurisprudential modifications that we know in comparative law show us how regressivity is possible at the same moment in which the decision-making axis of criminal policy is placed on the side of religious morality and the logic of biopower through the control of the body and the vital projects of women."

Balaguer also warns that at the moment there is "the impossibility of interrupting pregnancy in the public health system in some provinces of Spain" and that this forces women to move "unnecessarily" away from their homes, with the economic and psychological cost involved. The magistrate affirms that in the places where this happens "the logic of the conflict of values prevails", and as a result "it is the right of women that breaks before the exercise of the right to conscientious objection of health workers, before a deliberately slow system, or before the existence of a dissuasive information policy".

Balaguer admits in his vote that the recognition that there is a constitutional basis for the right of women to manage their own fertility, without interference from third parties, does not necessarily exclude "the criminalization of consensual abortion in certain cases." But, she adds, what is required is that "this criminalization be exceptional, essentially residual and respectful of the fundamental rights of women." This magistrate emphasizes, in any case, that the criminal sanction of consensual abortion "only legally enshrines a moral prohibition." And he explains this statement with the argument that "from a system of law, it is not possible to affirm undoubtedly that the harmful event is projected on a third party, because it is not possible to affirm that the embryo or fetus is a person in the legal sense, and therefore, holders of rights and autonomous subjects".

Balaguer affirms that the analysis of the voluntary interruption of pregnancy should not be based on the idea of the conflict between prenatal life and the freedom of decision of the pregnant woman, because "this approach attributes to the embryo the nature of an autonomous and independent object of the woman who gestates it". And he adds that this vision does not fit "in an understanding of the dignity of women as free, conscious and responsible individuals, capable of assuming the obligations derived from their moral perceptions." In short, Balaguer's concurring vote considers that women, as complete and autonomous human beings, full holders of all the fundamental rights recognized in the Constitution, "must be recognized as free and capable of making decisions about themselves and their life project, about their own body and about their personal moral conditions without the interference of the punitive power of the State."

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