The reform with which the Government wants to include abortion in the Constitution has already begun. Although there is still a long and complicated road ahead, the Council of Ministers gave the green light this Tuesday to the preliminary draft with which it seeks to guarantee that the interruption of pregnancy is not called into question by the anti-abortion offensive of Vox and the Popular Party “neither now nor in the future,” said the Minister of Equality, Ana Redondo. But the chosen formula raises doubts among experts about whether it is really the most appropriate way to protect it as a right in the Magna Carta.
After days of negotiations within the Government, the final text is an addition to article 43, which regulates health protection, which “recognizes the right of women to voluntary interruption of pregnancy” and establishes that its exercise must “be guaranteed” by the public powers “ensuring” that it is provided on an equal basis and that “the fundamental rights of women” are protected. The Executive thus chooses to incorporate it among the “guiding principles of social and economic policy”, in chapter three, and renounces its inclusion among the specially protected matters, among which are fundamental rights.
This has a first effect: doing so entails an ordinary reform, which, although it requires a qualified majority, imposes less strict requirements than doing so as a fundamental right, a course that would require the dissolution of the Cortes or a mandatory referendum. But this is also a route that “has less scope in terms of guarantees,” explains Mar Esquembre, professor of Constitutional Law at the University of Alicante. “Reinforced protection is only achieved by including it as an autonomous fundamental right. That is the formula to prevent, for example, the approval of a very restrictive law that limits the essential content of that right.”
Noelia Igareda, professor of Law at the Autonomous University of Barcelona, agrees and points out that “if we want to talk about a true 'right to', an aggravated reform of the Constitution would be needed” and its incorporation into the articles that contain the right to physical and moral integrity or dignity, which are precisely those with which the Constitutional Court linked abortion in 2023 by knocking down the resource that the Popular Party had filed against the 2010 law. The expert argues that including it in article 43 is doing it “as a principle.” “It is a right that public powers must guarantee but not at the same level of demand.”
The support of the Constitutional
Although the draft must now be submitted to perceptive reports, including that of the Council of State, the option chosen by the Government is to recognize abortion “as a guarantee of benefits”, as a service “that must be satisfied within the public health system”, defended Minister Redondo, for whom it is from that point of view that “its place makes sense” in chapter three of the Magna Carta. Furthermore, the Executive defends that, although it is not recognized as a fundamental right, the proposal “brings together all the interpretation that the Constitutional Court has made of the right” in the ruling two years ago.
It was then that the plenary session faced the debate on a law that had been applied in Spain for 13 years. The result, with a plenary session divided between a progressive majority and a conservative minority, were two sentences that anchored the interruption of pregnancy to the plank of fundamental rights. First in the resolution that rejected the PP's appeal and then the one that rejected Vox's allegations against the latest reform.
The guarantee court neutralized the main argument against the right to abort: that it conflicted with the right to life of the unborn. The interruption of a pregnancy, the ruling concluded, is part of a woman's fundamental right to physical and moral integrity (article 15 of the Magna Carta) and also to her dignity (article 10) and any law or reform must guarantee women “a reasonable exercise of their rights” without ceasing to “protect” prenatal life. Abortion, the justices concluded, is “a manifestation of a woman's right to make decisions and make free and responsible elections,” something that the court directly relates to the right to integrity, marked in red in one of the key articles of the Constitution.
Does it reduce protection?
For this reason, and given this guarantee interpretation, there are those who understand that inserting abortion in article 43 may even imply a lower category than that already granted to it, de facto, by law and jurisprudence. It is the case of Miguel Presno Lineraprofessor of Constitutional Law at the University of Oviedo, who believes that this route could constitute less effective protection. “It would be paradoxical if the condition of a fundamental right were removed,” he explains.
“If it is a fundamental right, it is not at the disposal of the legislator, it could be regulated in a different way, but already understanding that it is part of the right to the physical integrity of women, it seems difficult to me that it could go to a system other than the deadlines, which guarantees that space of freedom for women,” says Presno. “And it has a legislative shield, if it is there it can only be changed by absolute majority,” adds the expert, who thinks that doing it as the Government suggests has risks: “First it has a symbolic meaning: it is no longer a fundamental right. Secondly, if it becomes a guiding principle, women will no longer have the possibility of going to the Constitutional Court for protection, they would be losing an important guarantee.”
Esquembre, for his part, essentially agrees with Presno, although he does not believe that including the IVE in article 43 would lower its current protection. “The danger of the law being restricted is on the table regardless of whether it is incorporated into the guiding principles or not. What the Constitutional Court has done is interpret the law, but the law we have, which can be modified. Another thing would be for it to appear in the fundamental rights, there it would be much more difficult, the law itself and its conditions would be unmodifiable,” says the expert, co-founder of the Feminist Network of Constitutional Law.
The symbolic effect
All in all, the reality is that it will be very difficult to move forward with the project because, although the constitutional reform is the simplest, it requires a three-fifths majority of the Congress and the Senate, so a vote in favor of a PP that has already advanced its opposition would be essential. Therefore, for Esquembre, the Government should have been more ambitious: “The procedure is also going to be frustrated because the requirement of majorities is almost impossible, so since public debate is put on the table, let it be put as a fundamental right, recognizing women as full subjects.”
None of the voices consulted doubt that the Government seeks to set a political profile with an issue, abortion, against which Vox and a PP subject to internal debate have begun a crusade with echoes at a global level. Esquembre therefore values it as “a symbolic step” that abortion is at the center of the agenda. “Let's take advantage of the moment to put on the table how women's rights are still questioned,” says the expert, who recalls that Pedro Sánchez's announcement came as a result of the mayor of Madrid, José Luis Martínez Almeida, supporting Vox's proposal on the false post-abortion syndrome and Isabel Díaz Ayuso refusing to create the registry of conscientious objectors. That is why the Government has given Madrid, Aragon and the Balearic Islands a month to comply before resorting to the courts.
Gema Fernández, legal director of Women's Link, is also not opposed to the reform and highlights “the political shock” that it can cause, but doubts that “it is necessary.” In this sense, she believes that “it is not clear that it will be reinforced beyond what already exists with an organic law and the rulings of the Constitutional Court”, but, in addition, the expert is committed to focusing on what is yet to be guaranteed. “There are much more pressing problems that have to do with the lack of guarantees that are more urgent and that are hindering women in their access to abortion.”