20 July 2023

Advancing Reproductive Rights

On the Spanish Constitutional Court’s 2023 Landmark Abortion Case

Spain has reached a significant milestone in the area of abortion legislation with a new landmark ruling by the Spanish Constitutional Court (STC 44/2023, of May 9th). Following a long-awaited renewal in January 2023, the court now consists of a progressive majority. Thirteen years after the complaint was filed by 60 congressmen of the conservative party, the ruling finally upholds the constitutionality of Organic Law (LO 2/2010) on Sexual and Reproductive Health and Voluntary Termination of Pregnancy. Departing from the previous indications model, the law allows women to have publicly funded abortions on demand in the first 14 weeks of pregnancy and up to 22 weeks (and in some instances without time limit) in cases of embryopathy and risk to the health or life of the woman.  The only requirement is that women seeking an abortion are to receive a closed envelope containing, among other, information about the social and fiscal benefits and employment protections linked to pregnancy and motherhood, and a 3-day waiting period. It’s worth noting that these last two requirements were abolished in January 2023 when, with the case still pending, the current left-wing Sanchez government proceeded to amend law LO 2/2010 (through LO 1/2023). This move aimed to promote equal access to abortion services, addressing the regional disparities in the previous system. Furthermore, the age of consent for abortion was lowered back to 16, reversing a short-lived amendment by the preceding conservative government in 2015, which had raised the age of consent to 18.

Recognising Women’s Reproductive Autonomy

The greatest innovation in the decision lies in its basic architecture, diverging from previous precedent by  placing  women as legal subjects at the center stage and clearly recognising that women have a constitutional right to interrupt their pregnancies in the following terms: “the fundamental right to physical and moral integrity (art. 15 of the Spanish Constitution, henceforth CE) in connection with the dignity of the person and the free development of the personality (art. 10.1 CE), protect[s] the recognition to a woman of a reasonable scope of freedom in which to be able to adopt, autonomously and without any kind of coercion, the decision that she deems appropriate in terms of whether or not to continue the pregnancy, assuming the consequences derived from either choice in a conscious and thoughtful manner”.1)

In my view, however, the reasoning missed the opportunity to start from what should have been the natural starting point: that not all sexual relations are truly consensual and that wanting sexual relations does not equate to wanting motherhood. Consequently, women should not face punishment for violence, coercion, or simply for their biology that results in an unwanted pregnancy, whether intentionally or negligently.2) But we must certainly celebrate the fact that the ruling does begin with the primary focus on the constitutional status of the unborn, as the previous major Spanish precedent on abortion did  in 1985,3) drawing inspiration from the 1975 decision of the German Federal Constitutional Court.4) Instead, this time, relying on a “living tree approach” to constitutional interpretation, the Court foregrounds women´s rights in recognizing that “pregnancy and its continuation or interruption affect, first and foremost, the body of the pregnant woman, her life project, her way of being in the world and her capacity to establish all kinds of relationships (in the personal, as well as professional, educational, cultural and leisure realms).5)

Moreover, the ruling states that women cannot be treated as mere instruments, and that their autonomy in defining their life plans must be respected. It underscores the importance of  privacy in making deeply personal decisions, and of the fact that, ultimately, women cannot be forced to bear the physical consequences and psychological risks of pregnancy and childbirth, let alone the risks associated with clandestine abortion.6) It also acknowledges that, given the disparate impact of abortion regulation on women, the principle of equality (art. 14 CE) must be interpreted in light of the substantive or material equality mandate (art. 9.2 CE). This compels public authorities to guarantee real access to abortion services.7) A recent amparo decision condemning a regional health service for unduly referring a woman to a private health center in Madrid reinforces this postulate. In other words, this is not the Spanish Roe v Wade equivalent.8) We are not talking about negative freedom only, but about a positive right to abortion services, imaginatively combining autonomy and a positive conception of moral and physical integrity.

Diverging Visions about the Protection of the Unborn

And what about the nasciturus? It is not out of the picture. Despite the courageous concurring opinion by Justice Balaguer, which offers a feminist legal perspective, the majority vote does not completely deviate from precedent, although it had the opportunity to do so in a reasoned manner. Instead, it contains the constitutional obligation of providing a gradual protection to the nasciturus, considering it as “housed” within the woman’s body rather than being the woman’s body itself.9) There is unanimity among the justices that this unborn human life is not a rightsholder in strict legal terms. However, the majority, along with four of the five dissenting/concurring voices, stick to the holding in STC 53/185 which considered this form of evolving human life as representing a value which must be protected, particularly due to its potential for independent existence outside the maternal womb, albeit more in theory than in practice.

One notable aspect where the majority decision diverges not only from the dissenting voices, but also from the Court’s own 1985 precedent, as well as the 1993 German decision10), is its acknowledgment that the protection of unborn life during early stages of pregnancy can take a preventive and enabling approach. Rather than suggesting that criminal punishment or similarly drastic measures are necessary for protecting the unborn, the emphasis lies on promoting free and safe sexuality, facilitating family planning, and implementing supportive measures for maternity. This approach represents an objective rather than a subjective form of protection, encompassing a broader safeguarding of human life in the abstract, rather than a focus on individually conceived embryos or fetuses. Such an understanding aligns well with conceptualizing the unborn as embodying a value worthy of protection, rather than being a rights holder.

Spain will have general elections on the coming July 23rd and the conservative party has, according to polls, good chances of winning, but possibly with a majority that is not large enough and will force it to enter into a coalition with VOX, an extreme right party. VOX like so many of its European counterparts, has made opposition to gender equality and women´s reproductive rights one of its battlefields. In fact, VOX has already challenged the mentioned 2023 liberalizing reform passed by the Sanchez government. The extent to which a regressive reform could materialize in light of the described constitutional doctrine remains uncertain. But if one wants to have a sense of what the decision might have looked like, had it been shaped by these extreme conservative views on the rise, one only needs to read the dissent by Madame Justice Espejel (you see, the presence of women is no guarantee of feminism) and the imaginary it depicts: the unscrupulous mother as an existential threat to the vulnerable third party residing in her womb, necessitating protection at any cost from the perceived lethal intentions of this bad mother. Bad mothers who rebel against their natural duty to prioritize motherhood above all else, at any time and at any cost. Truly bad mothers.


1 STC 44/2023, FJ 7.
2 This was, incidentally, the starting point of the dissent expressed by Justices Mahrenholz and Sommer in the 1993 German abortion decision, which started by acknowledging as a basic feature of the human condition that sexuality and the desire to have children do not necessarily coincide, and that the consequences of such a divergence have thus far mostly fallen on women. For the Justices, given the fact that the State had to protect women’s rights respecting her dignity (article 1 [1] GG), physical integrity (article 2 [2] GG), and the free development of her personality (article 2 [1] GG), this meant that the State could not simply redeem its duty to protect human life from the very beginning, by displacing it on women. See BVerfGE 88,203, May 28,1993.
3 STC 53/1985, April 11.
4 BVerfGE 39,1, Feb 25, 1975.
5, 9 STC 44/2023, FJ 2.
6 Ibid., FJ 3.
7 Ibid., FJ 8.
8 410 U.S. 113 (1973).
10 In BVerfGE 88,203, May 28,1993 the Court gives up on criminalization and finally accepts abortion on demand, because it recognizes that criminalization simply does not work as women continue to have illegal abortions. However, the decision still sets the bar at forcing women to undergo explicitly dissuasive counseling. This means that pregnant women still have a prima facie constitutional duty to carry their pregnancy to term (ibid., C.III.1) and that they do not have a right to arbitrarily reject what the Court called their “natural maternal duties and the self-sacrifices that came along with them” (ibid., D.III. 2).