Protecting Reproductive Rights: A Balancing Exercise for the Spanish Constitutional Court

by | Jul 17, 2023

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About Mónica Arango Olaya and Rosario Grimà Algora

Mónica Arango Olaya and Rosario Grimà Algora are DPhil candidates in Law at the University of Oxford. Mónica's research focuses on digital feminism and law and social movements. She holds a Bachelor of Laws from Los Andes University in Colombia, and an LLM from Harvard University. She was a Graduate Research Resident at the Bonavero Institute of Human Rights and an editor for Frontiers of Socio-Legal Studies. Before coming to Oxford she was Deputy Justice at the Colombian Constitutional Court and Regional Director for Latin America and the Caribbean at the Center for Reproductive Rights. Her main areas of focus are public international law, reproductive rights, international human rights law, and constitutional law.

Rosario's research focuses on constitutional remedies and gender based violence. Before coming to Oxford, she worked at UN Women and the Center for Reproductive Rights.  Her main areas of research are international human rights law, feminist jurisprudence and constitutional law.

In stark contrast to recent regressions on abortion rights, including the fall of Roe v Wade in the USA, the Spanish Constitutional Court lately signalled greater protections for reproductive rights, upholding the regulation of abortion through a gestational limits model. Yet this decision in STC 44/2023, 9th of May, was not unanimous, with four justices dissenting. As such, it evinces the contentious nature of the debate around reproductive rights, which is why it is critical to carefully consider the judgments of the Court. The Court’s decision anchored the protections on a balancing exercise between the interest of protecting prenatal life and women’s right to physical and moral integrity, in connection with the rights to dignity and personal autonomy. This has made the proportionality test of critical importance in the protection of reproductive rights. The case further shows that abstract constitutional review of laws on abortion must pay due consideration to the impact that pregnancy has on women’s lives and on their human rights.

Almost 13 years ago, 71 parliamentary members of the Spanish People’s Party challenged provisions of the Organic Law 2/2010 on sexual and reproductive health and the voluntary interruption of pregnancy. The statute establishes a gestational limits model, allowing abortion on request during the first 14 weeks of pregnancy (Article 14). From then until week 22, it establishes an indication model that allows abortion when women’s lives or health are at grave risk, or if there is a risk of grave foetal “anomalies” (Article 15 (a),(b)). After 22 weeks, abortion is only allowed when there are foetal “anomalies” incompatible with life, or if the foetus is diagnosed with an extremely grave and incurable illness (Article 15(c)). The law also regulates conscientious objection from healthcare providers, and requires them to be trained on gender, by incorporating sexual and reproductive health into academic curriculums, including the voluntary interruption of pregnancy. The parliamentarians challenged these provisions, arguing that they left the unborn’s right to life unprotected, and that they contravened constitutional rights including non-discrimination (Article 14), legal security (Article 9), conscientious objection and freedom of thought (Articles 16 and 18.1), and academic freedom (Article 20.1.c).

The Court based its decision to reject the petitioners’ arguments on the proportionality test. In its view, the regulation adequately balanced the interest to protect prenatal life against women’s fundamental rights. The debate centred around whether the ‘nasciturus’, or unborn life, had the right to life. The Court found that such an entitlement was supported neither by Spanish constitutional law, nor the jurisprudence of the European Court of Human Rights and other human rights treaties. However, it did recognise the duty to protect prenatal life, though in a different degree to women’s own rights.

Importantly, the Court acknowledged women’s right to self-determination in deciding to terminate a pregnancy. This was a bold finding, strenuously criticised in the dissenting opinions. Yet the majority established that women have a sphere of freedom to make decisions about their reproductive lives without coercion, and to choose to have an abortion, within the regulatory guidelines. Surprisingly, the Court did not rely on the right to equality to reach this decision, but rather the right to physical and moral integrity, in connection with the rights to dignity and self-determination. While these acknowledgments are important, we must not underestimate the impact that reproductive rights have on women’s substantive equality: the Court’s failure to consider equality dimensions is therefore myopic.

In reviewing the specific provisions of the impugned statute, the majority asserted that criminal law was not an adequate means of protecting prenatal life in the first 14 weeks, as there were other alternative policies in place. This position mirrors the International Law Commission of Jurists recent principles which proscribe the criminalisation of abortion. Such principles uphold human rights based approaches to the use of criminal law, amongst others, under the principle that criminal law should be used as ultima ratio, rather than in the first instance. It also found that the degree of protection of prenatal life is different to that accorded to women, as prenatal life is not entitled to rights. This is particularly important with respect to the flawed argument that the law discriminated against persons with disabilities: rather, demanding women to carry a pregnancy to term in cases of foetal abnormalities was disproportionate. Moreover, the Court stated that the requirement to train healthcare providers on gender does not constitute “indoctrination” but is an important means of ensuring formal and substantive gender equality, which is a basic principle of the Spanish Constitution and of democratic society.

The Court’s landmark decision showcases how the proportionality test is intertwined with considerations of dignity, physical and moral integrity, personal autonomy and equality, which invoke greater protection for reproductive rights. The judgment is a welcome development on a contentious and polarised topic, which in recent years has often manifestly disregarded the rights of women.

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