The draft ruling, drafted by conservative judge Enrique Arnaldo, proposes only one ground for unconstitutionality of the current abortion law, which relates to informing the woman who wants to terminate her pregnancy. Arnaldo believes that the legislator must guarantee the completeness of this information, which he has not done in the current regulations, which is why he proposes to the court to annul the last paragraph of sections 2 and 5 of article 17 of the contested law the PP before twelve years. The paper thus confirms the system of deadlines that the People’s Party wanted to declare unconstitutional with an appeal in 2010.
Arnaldo’s presentation, on the other hand, fits in with the current demands of the PP, whose President Alberto Núñez Feijóo emphasized last week that the population no longer questioned the system of deadlines. In fact, this change in criteria occurred during the reign of Mariano Rajoy, during which this system was not modified, except that parental permission was again required for pregnant women between the ages of 16 and 18. So far, the difficulty in accepting the time limit system has been that in order to recognize its constitutional legality, the constitutional doctrine itself, which was laid down in the 1985 judgment of the Guarantee Authority, had to be broken.
The resistance of the judges of the conservative sector of the court to change this doctrine prevented for years the verdict on the abortion law from being discussed, because in the guarantee body itself was fully aware of the broad social rejection that opposed a possible repeal of the abortion law time limit system in the Spanish company would have. To overcome the problem of breaking with this doctrine of the 1985 ruling regarding the rights of “Nasciturus,” the paper, which will be debated in court next week, argues that the imposition of a criminal sanction on the pregnant woman campaigning for termination decides her pregnancy during the first fourteen weeks of her pregnancy “cannot reasonably be construed as a relinquishment of the protection of the life of the unborn child”.
Arnaldo’s thesis is that the state has found an alternative to criminalizing abortion by regulating the time limit system. This alternative – he explains – consists “in calling for mandatory state intervention in the decision-making process of women through counseling and the opening of a period of reflection that understands that in this first phase of pregnancy, in which life is shaped entirely by the life of the mother dependent, it has a better chance of protecting the ‘nasciturus’ if it acts with the mother and not against her”.
Arnaldo’s criticism of Article 17 in its Sections 2 and 5 of the Abortion Act therefore derives from the fact that the information that pregnant women who wish to terminate their pregnancy must receive should not be “general and standardized, detached from the purpose of protection of the prenatal”. life”, but must be “rigorous, specific and qualified information, aimed at allowing the woman to make a responsible and well-considered decision”. The regulations that Arnaldo proposes to repeal are, in short, those that stipulate that “in cases , in which women opt for the abortion regulated in Article 14, they also receive a sealed envelope containing information” about the intervention to which they will submit They add that “this information can be sent to any public health center or to accredited centers for the voluntary abortion must be submitted en”, and they specify that “along with the information, a document proving the date of pregnancy will be sent to the woman in a sealed envelope. Finally, Section Five states that “people with disabilities are provided with accessible formats and media appropriate to their needs”.
In view of this, from the rapporteur’s point of view, brief regulation, the draft resolution justifies that “the voluntary abortion is not comparable to any medical act, since it involves a complex conflict between the shaping of human life as a legal interest worthy of protection and the rights and legitimate interests of the pregnant woman”. Therefore, it states that the pregnant woman who wishes to terminate her pregnancy “cannot be deprived or restricted of her right to personalised, adequate, complete and sufficient information on both the physical and psychological consequences of the implementation of the intervention Support for motherhood and pregnant women”. The presentation emphasizes that the goal must be that the woman “can decide freely, consciously and responsibly whether she wants to terminate the pregnancy or continue the pregnancy”. And he adds that such a decision must be made “after a minimum period of reflection”.
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Current law already provided that the information referred to by the speaker “may be offered orally if the woman asks for it”. But in Arnaldo’s opinion this is not enough and it must be ensured that the information “must be given orally” to ensure that the pregnant woman is “properly informed before making her decision”. Since the function of the Constitution is not to legislate, the paper’s objection to how information is communicated to the woman who desires an abortion imposes no specific duty on the Government and Parliament, if approved by the Court, how they are to develop This aspect of the law would, however, leave a gap that would likely need to be examined in the new bill currently being debated in Parliament. In any case, it does not impose any new requirements on a woman who wishes to voluntarily terminate her pregnancy.
Finally, the paper also assumes that with regard to the right to conscientious objection, not only those “directly involved” in processes of voluntary abortion should be involved, but also all health professionals involved in such processes.
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