The dissenting magistrates on abortion: "It is not up to the TC to rewrite the Constitution to create new rights"

The particular vote signed by the magistrates of the conservative sector of the Constitutional Court against the abortion ruling is very critical of the role played by the guarantee court in “creating” new fundamental rights.

Judges Ricardo Enríquez, Enrique Arnaldo and César Tolosa affirm that “the Constitution is not a blank sheet that the legislator can rewrite at his whim, nor is it a blank sheet that its supreme interpreter can rewrite, without limits”, referring to the High Court.

The resolution approved last Tuesday by the Plenary defines for the first time abortion, or voluntary interruption of pregnancy, as “a manifestation of the right of women to make decisions and make free and responsible elections, without violence, coercion or discrimination, with respect to his own body and life project”.

Likewise, in the joint individual vote -to which EL MUNDO has had access-, it is highlighted that what the sentence, a presentation by Vice President Inmaculada Montalbán, actually intends, “is to articulate a supposed new right categorized as fundamental, in this case the woman's right to abortion.

The magistrates explain the sentence where the appeal that the Popular Party filed against the voluntary interruption of pregnancy approved by the Government of José Luis Rodríguez Zapatero is resolved “is not limited to analyzing whether the specific regulatory option embodied by the legislator in the legal text subject to prosecution respects or exceeds the constitutional limits, but rather, exceeding the scope and limits of the constitutionality control that corresponds to this court, comes to recognize a new fundamental right, which identifies as the right of women to self-determination with respect to the Interruption of pregnancy”.

In the same way, the conservative block of the TC emphasizes that “it is not up to the Constitutional, therefore, to rewrite the Constitution to create, discover or deduce new fundamental rights, substituting the permanent constituent power.”

“The ruling is outside the scope of constitutionality control that corresponds to this Court, since recognizing fundamental rights is a power of the constituent power, not of the constituted powers and, therefore, it is not of the Constitutional Court,” they add.

“To protect human life in formation”

In contrast, the Constitutional minority defends that in order to resolve the constitutional conflict that the regulation of abortion in Organic Law 2/2010 raises, it was not necessary, nor appropriate, “to illuminate, as the sentence does”, a new fundamental right of the woman to self-determination regarding the termination of pregnancy, anchored in article 15 of the Constitution, in connection with article 10.1 of the Magna Carta, “but the correct approach cannot be other than to take into account that on the State weighs not only the duty to protect human life in formation but also the rights and legitimate interests of the pregnant woman”.

Similarly, Enríquez, Arnaldo and Tolosa stress that “the Constitution not only imposes limits on the legislator but also on the Constitutional Court” and stress that both “have to respect the rigidity of constitutional norms for the simple reason that neither neither the legislator nor this court can replace the constituent power, establishing itself as a kind of alternative constituent powers”.

For her part, magistrate Concepción Espejel, also belonging to the minority sector of the Constitutional Court, will formulate an independent individual vote considering that the system of terms is unconstitutional. Espejel shares with his colleagues from the conservative bloc the criticism of the TC's overreach by declaring abortion a crime and warns that the sentence does not adhere to a strictly legal interpretation but rather gives entry “to an ideological approach tending to create a non-existent right women's fundamental right to abort which, moreover, leaves human life in formation unprotected”. But, in addition, the magistrate defends the lack of appearance of impartiality regarding the composition of the Plenary that has resolved the matter, since a large number of its members ruled on their previous charges on the Abortion Law approved by Rodríguez Zapatero.