The hypothetical reform of Article 43 of the Spanish Constitution (CE), to incorporate the right to abortion into the text, would constitutionalize a right that was not included as such in the constitutive pact of the Transition. Although there was already intense debate on the issue at the time. At that moment, there did not seem to be the necessary consensus, or sufficient interest, in constitutionalizing the feminist vindication that every woman could make autonomous and free decisions about her pregnant body, as well as about the life project that motherhood represents.
Today, despite the intense work carried out by the feminist movement over five decades, we still do not know whether there exists the social consensus necessary to elevate to constitutional rank the freedom to terminate a pregnancy—perhaps that question should have been settled at the outset. By contrast, the legislator and jurisprudence have designed a highly guarantor legal framework for a right that, to date, has been of mere legal configuration.
The State of Abortion in Law
That legally favorable situation has been instrumentalized through the proposal of a reform as necessary as it is ill-suited in the terms proposed. The Government’s declared intention, when proposing a revision of art. 43 CE, is to strengthen the right to prevent potential and future reductions, in a context of changing parliamentary majorities or modification of interpretative criteria within the Constitutional Court. It is a reform conceived, or at least presented, to defend the standard reached with the current legal definition of the right to abortion. On paper, it is a defensive reform against regression.
But it is worth examining this approach critically, both from a technical-legal perspective and from a political one. Constitutional reforms that are “defensive,” like this one, can be deeply problematic in the medium term and, in the Spanish constitutional system, we would be facing the first reform of this kind.
The legal configuration of voluntary termination of pregnancy (IVE) rests on a triple structure: i) the Organic Law 1/2023, of February 28, which amended Organic Law 2/2010, of March 3, on sexual and reproductive health and on voluntary termination of pregnancy, provisions both in which it is recognized that fundamental rights in the realm of sexual and reproductive health must be guaranteed (art. 1), linking abortion to the right to free development of personality, to life, to physical and moral integrity, to privacy, to freedom of ideology and to non-discrimination (art. 12); ii) the STC 44/2023, which states unequivocally that the “decision of the woman to terminate her pregnancy is protected by art. 10.1 CE, which enshrines ‘the dignity of the person’ and the ‘free development of the personality’ and in art. 15 CE, which guarantees the fundamental right to physical and moral integrity”; iii) and, finally, the regional provisions that, with different ranks, organize and articulate the provision of the public health service linked to voluntary termination of pregnancy.
“From the current framework it cannot be derived that the right to IVE is a fundamental right, or a constitutionalized right”
From this framework one cannot derive that the right to IVE is a fundamental right, or a constitutionalized right. It is a legally configured right, because it is not expressly enshrined in the text of the Constitution, which the legislature has developed broadly and guaranteeingly and which the constitutional interpreter, in a non-unanimous ruling, has linked to a fundamental right (the physical and moral integrity) and to a basic constitutional principle such as human dignity. But both standards can be modified in the future by a different legislator or interpreter. In fact, it is being shown that the third leg of the legal tripod wobbles because not all autonomous health administrations guarantee, in an adequate and egalitarian manner within the public system, access to IVE. The citation of STC 78/2023 and the report of the Ministry of Equality on “Abortion in Spain: barriers and challenges to guarantee the right to voluntary termination of pregnancy” bear testimony to this.
The Background of the Proposed Reform
Now then, is the best answer to meet the existing standards and to consolidate them a constitutional reform like the proposed one? The answer is clearly negative. Any option that does not proceed to constitutionalize the right to abortion as an autonomous fundamental right, or as a fundamental right linked to another of those already recognized in Title I, Chapter II, Section 1 of the Constitution, will not achieve the objective of consolidating standards that this reform claims to pursue.
Article 43 CE is not a fundamental right. The 1978 constituent classified people’s rights into three groups with different levels of protection, and relegated the welfare-related rights to a chapter reserved for what it called “guiding principles of social and economic policy”. The right to health in Article 43 CE is in this group. And there the right to sexual and reproductive health and the option for IVE would be linked, according to the Government’s proposal.
This means that, for it to act as a true right —that is, to be directly applicable and enforceable before the courts—, it is necessary for the legislator to develop it. It also means that, when the legislator does so, he is not obliged to respect a minimum content enshrined in the Constitution, but rather has a broad regulatory margin.
Additionally, unlike, for example, the right to freedom of thought and religion —which would cover conscientious objection—, it would not be incorporated into a system of protective jurisdiction that is preferred and summary: the amparo remedy. It also implies that, when the legislator wishes to develop it, it does not require an absolute majority in the Chambers, because the guiding principles, which must “inform” legislation and jurisprudence, can be developed by a simple majority. Although this latter conclusion may admit technical nuances, because the penalization of abortion in cases currently allowed would require penal reforms that do require an organic law and because amending an organic law —which is the current one— would require one of the same nature. The relevant point is that placing the right to abortion among the guiding principles would place it in a realm of constitutional protection that is quite weak. It would be constitutionalized, indeed, with the symbolic value that this entails, but in a smaller constitutional space.
What Are the Potential Consequences?
Would we lose the standard already achieved with this reform? Not immediately and not necessarily. It would depend, as it does now, on the future legislator and the future interpreter. But they would be hardly limited by a hypothetical future guiding principle on abortion. Would we avert the danger of future setbacks? Clearly not.
“The attempt to define the right to abortion as a fundamental right clashes with the extreme difficulty of constitutional reform of this section of Title I of the Constitution”
Certainly, the attempt to define the right to abortion as a fundamental right clashes with the extreme difficulty of constitutional reform in this section of Title I of the Constitution, governed by Article 168 CE. Therefore the proposal has been presented as a “possibilist” proposal: to “touch” Article 43 CE refers to the procedure for reviewing Article 167 CE, which requires ultra-forced majorities, but not the dissolution of the Chambers for the new ones to confirm the reform, nor a referendum at the end of the process. But what chances does a constitutional revision that requires the majority parliamentary group of the opposition have to prosper, and that has been presented as a defensive reform against the ideological sector where that group would be located?
Surely very few. And the chosen option has disrupted a debate that should have been situated in the plane of building a political consensus about what we want to do with the right to IVE, not what we can do with it.
