The magistrates of the Constitutional Court who opposed this past Tuesday the approval of the sentence that gives support to the 2010 law that introduced the system of abortion deadlines have drafted a private vote in which they express their discrepancy with the majority position of their colleagues and criticize the “excess jurisdiction” in which – they say – has been incurred by qualifying the practice as a right. “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,” they say..

As described in the dissenting vote signed by Enrique Arnaldo, Ricardo Enríquez and César Tolosa, to which El Confidencial has had access, the recently approved resolution exceeds the scope and limits of the constitutionality control that corresponds to the court and recognizes a new fundamental right that is identifies as a woman's right to self-determination regarding the termination of pregnancy and thereby obliges the public powers to guarantee its effectiveness.

The vote ensures that the resolution “is located outside the margins of constitutionality control” that correspond to the Constitutional Court and warns that recognizing fundamental rights is a power of the constituent power, “not of the constituted powers and, therefore, I do not is from the Constitutional Court”. They insist that with this interpretation, their colleagues in the progressive majority rewrite the Magna Carta “to create, discover or deduce new fundamental rights, substituting the permanent constituent power”.

In his opinion, the TC should limit itself to examining whether the legislative option embodied in the law that is analyzed respects or contradicts the Constitution.. “Any other operation exceeds the scope and limits of the constitutionality control that corresponds to this court”. They go a step further and denounce that the function of the Constitutional Court is not to declare that a norm is “constitutional” but that it is “not unconstitutional”..

A dogmatic construction

For the three magistrates who sign the vote, the rapporteur Inmaculada Montalbán has carried out a “dogmatic construction” and tries with her arguments “to limit the legitimate options of the legislator in regulating the serious legal conflict that the voluntary interruption of pregnancy supposes”. Thus, they explain that the sentence begins by emphatically affirming that due to the importance of the decision that the woman adopts regarding her pregnancy, her dignity and the “free development of personality” cannot be ignored..

“In this way, a kind of subjective right to freedom is configured,” they say and add that “the plurality of options that the Constitution opens” disappears as an expression of political pluralism as a superior value of the order. With the interpretation made, only one is imposed in an exclusive and exclusive way, they conclude. For those who disagree, the correct approach would have been to take into account that the State bears not only the duty to protect human life in formation, but also the legitimate rights and interests of pregnant women, particularly their fundamental rights..

They also criticize that the sentence was approved when, in their opinion, it lost its purpose due to the entry into force of the abortion reform of 2023. They assure that despite the fact that it was in 2010 when the deadline system was introduced, that is not an “excuse” to “avoid the application of the more than consolidated constitutional doctrine on the disappearance of the object of the unconstitutionality appeal based on substantive challenges when modifications occur laws that affect the impugned precepts”.

The sentence was approved this Tuesday by seven votes to four. Progressives vs. Conservatives. The ruling not only rejects in its entirety the appeal filed by the PP in 2010, now 13 years ago. Protects the decision on the termination of pregnancy in cases assessed as a fundamental right. “The woman must be able to reasonably adopt, autonomously and without coercion of any kind, the decision she considers most appropriate regarding the continuation or not of the pregnancy,” says the draft to which El Confidencial has had access and which will be made official and public within a few days after undergoing some corrections.

The text used in the ruling ensures that respect for the fundamental right of women to physical and moral integrity, included in article 15 of the Magna Carta, in connection with their dignity and the free development of their personality (which appears in the Article 10.1), “requires the legislator to recognize an area of freedom” for women. That dome, that protection, is aimed at allowing him to decide “reasonably, autonomously and without coercion of any kind”. “These principles would be evidently ignored if the culmination of the pregnancy itself and the consequent delivery were imposed on the pregnant woman, in absolute terms,” highlights the TC.

There are other paragraphs of the sentence that abound on this right. It ensures that pregnancy, childbirth and maternity indisputably condition the life project of women. The voluntary interruption of pregnancy “presupposes the freedom of the woman to adopt a vital decision of the utmost importance”, highlights. She reasons that “the decision about continuing with the pregnancy, with the consequences that this implies in all aspects of life —physical, psychological, social and legal—, is directly linked to her dignity,” she says.. The free development of their personality would also be affected, in the event of not protecting themselves, “a principle that protects the autonomous configuration of their own life plan”, as the jurisprudence of the TC has defined.. “It would do so if life decisions or choices of a particularly intimate and personal nature were imposed on the person,” he insists..