The Spanish Government has recently approved a project for a constitutional amendment to protect the right to a voluntary termination of pregnancy (abortion). This amendment would add a new paragraph to article 43, on the right to healthcare, to include the following text:

“Public authorities shall guarantee women’s right to voluntarily terminate their pregnancy under conditions of real and effective equality, with all the necessary provisions and services for that exercise.”¹⁾

While the discussion of constitutional reform is welcome, the current amendment falls short of its promises.

Legal status of abortion in Spain

Abortion in Spain is both a crime and a fundamental right. This contradiction is not unique, as abortion is regulated through criminal law in most countries. Only under specific circumstances, women and providers are exempt from criminal liability. Pregnant women who consent to or procure their own abortion outside the cases legally permitted, as well as third parties who procure abortions, are liable to a criminal penalty (articles 145 and 145 bis of the Criminal Code). Non-consensual abortions carry higher criminal sanctions (art 144 Criminal Code).

The conditions under which abortion can be accessed in Spain are established in the 2010 Organic Law on Sexual and Reproductive Health and the Voluntary Interruption of Pregnancy (LO 2/2010). Prior to this law, abortion was only permitted on three grounds: when there was a grave risk to the life or to the physical or psychological health of the pregnant woman, when the pregnancy was a result of rape, or when the foetus had grave physical or mental anomalies. LO 2/2010 sought to provide a new regulation of abortion based on the progress in the social and legal recognition of women’s autonomy and the legislative trends in neighbouring countries (preamble, LO 2/2010).

LO 2/2010 significantly expanded access to abortion by permitting abortion on request during the first 14 weeks, and thereafter based on medical grounds that diverge depending on the gestation age. Up to 22 weeks of gestation, it is permitted when (i) there is a grave risk to the life and health of the pregnant woman, and requires a medical report from a specialist doctor different to the one who will perform the abortion; or when (ii)  the foetus has a grave anomaly, requiring a favourable report from two specialist doctors different from the one that will procure the abortion. At any stage of gestation, if (iii) there are foetal anomalies incompatible with life, requiring a report of a specialist doctor different to the one who will perform the abortion, and (iii) if there is an extremely grave and incurable foetal illness, confirmed by a committee of doctors. As such, while abortion is available on request within the first 14 weeks, after this period, access to abortion becomes a cumbersome process, dependent on the opinion of doctors, and not on the needs and perceptions of the pregnant woman.

In all these cases, the abortion procedure must be practised by a specialist doctor, in a health centre accredited for this purpose, and women need to express informed and written consent.

In 2023, the Spanish Constitutional Court confirmed the constitutionality of this law. More notably, the Court held that abortion is a fundamental right, protected under the fundamental right to physical and moral integrity, in connection with dignity and the free development of the personality (STC 44/2023). This is considered a positive right that requires action from public authorities (derecho de carácter prestacional) and, since the right is not explicitly included in the constitutional text, it takes the shape of a right of legal configuration (derecho de configuración legal). The characterisation as a right of legal configuration means that not all infringements on abortion involve a breach of the fundamental right, but only those that directly breach the protected part of the right. The Court held that this will happen when there is a breach of the legal provisions (i) guaranteeing that a woman can decide freely, with full knowledge and other elements necessary to make such a decision, and (ii)  ensuring that the service of the abortion is provided respecting women’s rights (see STC 78/2023, FJ 5). Requiring a woman to travel to a private clinic from one autonomous community to another (in this case, from Murcia to Madrid, which is 400 km away), without any justification, was found to be a breach of the fundamental right to abortion (STC 78/2023, FJ 7).

Amending the Spanish Constitution

Under the Spanish Constitution there are two amendment procedures. The first procedure, which is the one that will be followed by this amendment, requires the approval from 3/5 members of both chambers (article 167 Constitution). There is a second heightened procedure when the whole constitution is to be revised, or when specific sections are to be amended, including the one containing fundamental rights. This procedure requires a super-majority (2/3 from each chamber), the dissolution of both chambers, a second vote, and a referendum (article 168 Constitution). Thus, the sections protected under this second procedure are almost unamendable. The few amendments to the Spanish Constitution so far have followed the former procedure.

The heightened protection from amenability of some sections is due to these being considered core to the Constitution. Fundamental rights are not only protected by a heightened amendment procedure, but by other guarantees. Some of these guarantees include a preferential and summary procedure in ordinary courts and a constitutional protection through a constitutional writ (amparo); they do not require the existence of any law for individuals to claim them; and any regulation of fundamental rights has to be developed through an “organic law” which requires an absolute majority for its approval, modification and derogation and must always respect the fundamental right essential content.

The most recent discussions on enshrining the right to abortion started after France included it in its own constitution. The political party SUMAR (in the coalition government) suggested following France’s example, but the PSOE (the other party in government) initially rejected this proposal, precisely alleging that modifying the fundamental rights section in the constitution required a super majority that would not be possible to achieve in the current Parliament. Eventually, both parties agreed to introduce the amendment as part of the chapter on guiding principles of social and economic policy (Chapter 3, Title I), which does not need to follow the heightened amendment procedure. The proposal has already been approved by the State Council and Council of Minister, and it seems it will be discussed in Congress shortly.  However, it is uncertain whether the proposal will pass, as per the current composition of Parliament, it will require the votes of the Popular Party whose leader has previously rejected the amendment.

In the press conference introducing this amendment, the Minister of Equality provided several reasons to support this amendment, namely  (i) to protect the right to abortion from a possible backlash, including by reinforcing the jurisprudence of the Constitutional Court, (ii) for coherence purposes, as a democratic state that embraces human rights, equality and women’s rights, and (iii) to ensure that there is an effective and real implementation of the right to abortion.

A second-class right

The main problem with the current proposal is that it is not included as part of the section on fundamental rights, but in the chapter on guiding principles of social and economic policy.  These principles are not fundamental rights, and thus not protected by the guarantees explained in the previous section. These principles do inform the legislator, judicial practice and public authorities, yet these may only be relied on in ordinary courts in accordance with what the pertinent law regulates them. This means that they require a law to be implemented – and not necessarily the heightened organic law – and are rights developed by legislation (Article 53.3 Constitution).

Thus, the proposed amendment will not necessarily add the promised shielding against a possible backlash. As a principle, future legislators may be able to mould the right. Itziar Gómez Fernández has argued that the sole way to properly incorporate the right to abortion is as a fundamental right, and I could not agree more with such an argument. Any other form of introducing abortion is a bittersweet win: it is a second-class right, without the guaranteed protections against that possible backlash, and it also falls short of the promised recognition of equal citizenship stature. Of course, the problem is that the inclusion of such a right under the fundamental rights section requires such a cumbersome procedure that it is hard to achieve.

Finally, the amendment, per se, will not impact the real and effective implementation of abortion.  Obstacles to abortion are numerous, including conscientious objection, the limited public centres providing abortions, the regional disparity, the lack of available information, the limited access to self-managed abortion and finally, the persistent stigma around abortion, which in fact is probably a common denominator for these obstacles. There are already provisions in LO 2/2010 to address some of these obstacles, yet they still persist and are not fully implemented. Likewise, coordination with autonomous communities is also required, especially regarding the provision of public services of abortion. Implementation of the current LO 2/2010 cannot be achieved by a constitutional amendment, but requires regulations, protocols, policies and coordination among territorial entities and institutions to ensure that abortion is real and effective for all women.

The needed changes

Despite the shortcomings of this proposal, it does create an opportunity to start a discussion on the extent to which the current configuration of abortion is working. Hopefully, politicians and civil society organisations can catapult this momentum to start a much-needed conversation about the conditions under which we want access to abortion to occur in 2026 Spain. 16 years after LO 2/2010 was introduced, and as the Constitutional Court rightly pointed out, the society has significantly changed, including on the status of women and society’s views on abortion.

There is also a growing corpus on international human rights law, and significant research and public health data evidencing that some of the ways abortion is regulated in Spain is still based on preconceptions of abortion as a dangerous procedure that always requires specialised medical intervention and certified health centres, as well as the existence of gender stereotypes through the criminalisation of consensual abortion. The WHO Abortion Care Guideline(2022), for instance, recommends the decriminalisation of abortion – that is, the removal of the crime from the Criminal Code – and the concurring opinion of justice Balaguer Callejón in STC 44/2023 already hinted at how a reform on the decriminalisation of consensual abortion might be constitutional. There is also growing evidence that a broader range of healthcare providers can procure abortions in some cases, as well as evidence that self-managed abortion within specific time frames is safe, and provides privacy and calm to women that other procedures do not.

These are just some thoughts on how to contribute to a new abortion reform that leaves aside gender stereotypes, flawed preconceptions on abortion and complies with the WHO Guideline.  It is, of course, a difficult reform, but so is any constitutional amendment.  As such, even if the amendment proposal falls short of its promises or is not approved, it is important for both civil society and politicians to catapult such a momentum to start a needed conversation of what is the legal configuration of abortion that we need and want, and how this can be more in line with women’s rights, WHO standards, and enhance women’s equal citizenship stature.