About the Spanish Draft Bill on Abortion

The European Centre for Law and Justice conducted a detailed analysis of the key provisions of the Spanish draft bill on abortion, comparing the law in force in other European countries as well as the jurisprudence of the European Court of Human rights (ECtHR). Here is a summary of this analysis which can be downloaded HERE

On 20th December 2013, the Spanish Council of Ministers adopted a draft Bill named “the protection of the life of the unborn and the rights of the pregnant woman”[2] seeking to protect both the life of the unborn child and the rights to life and to health of the pregnant woman. If this draft Bill is adopted, it will replace the Act no. 2/201 on “sexual and reproductive health and abortion” of 3rd March 2010 which has been greatly criticised since its enactment. One million people having protested against that Act in October 2009[3].

The Spanish Act of 2010, modifying the previous Act of 1985, presents abortion as a right in itself rather than an exception the right to life of the child. Under this law adopted by the Government of Mr. Zapatero, abortion is available on demand during the first 14 weeks of pregnancy.[4] Abortion is further available up until the 22nd week in the case of “serious risk to the life or health of the mother or of the foetus”; however, due to the absence of a real control mechanism, abortion has in fact become available on demand until up to 22 weeks. Finally, in cases of serious and incurable disease at diagnosis, abortion can be performed until the end of pregnancy provided that the disease is certified by a committee of physicians, which may belong to the clinic performing the abortion in question[5]. Furthermore, this 2010 Act allowed underage girls to abort anonymously and heavily restricted the right to conscientious objection of medical staff. In short, the 2010 Act aimed to extend and facilitate abortion, which became a “right” in itself, and went so far as to restrict the rights of third parties.

In addition, this Act has allowed the appearance of unacceptable practices such as the development of a quasi-abortion industry, in specialised private institutions, some of which carry out lucrative late-term abortions[6] on an international “clientele”.
The objective of the new draft Bill of 20th December 2013 is to end this logic of “abortion as an individual freedom” and to rebalance the rights of those involved, namely those of the unborn child and it’s mother, as well as those of the parents (in cases of an abortion involving a minor), medical staff and of society as a whole.

This Bill is not based on the idea that there would be, or not, a right to abortion, but it is based on the first reality – the actual existence of the unborn child: a living human being who exists before birth and deserving of protection. This fact is often ignored or undervalued by those which view abortion primarily as a personal freedom.

The existence of this living human being – although still in gestation – excludes the possibility that a person can have absolute power over his life, and therefore can have a fundamental right to abortion. The starting point of this Bill therefore makes it impossible to assert a right to abortion. However, it intends to take into account the rights of all those involved in abortion whereas the 2010 Act gave a large priority to the rights of the mother. It is therefore about finding a better balance between the various rights and competing interests.

The result of this search for balance is that the life of an unborn child cannot be sacrificed without a proportionate reason. On the other hand, when there are no grounds justifying a request for abortion, the human life cannot therefore be sacrificed, but must be protected and upheld, with the support of society. As a result, the Bill has the effect of abolishing abortion “on demand”.

The Bill determines the circumstances and conditions under which an abortion can be performed. Specifically, the text provides that abortion is decriminalised when practiced:

• in the case of rape, during the first twelve weeks of pregnancy;
• during the first 22 weeks of pregnancy, if the case of necessity is verified by an independent medical committee, and if no other solution can be found in a medical setting or otherwise, to prevent a serious threat to the life or the physical or mental health of the pregnant woman. This serious threat to the mental health of the mother can result from a malformation of the child such as to cause the child’s death during pregnancy or shortly after birth. The period of 22 weeks of pregnancy corresponds to the threshold of viability of the child set by the World Health Organisation;
• until the end of pregnancy when the child has an abnormality “incompatible with life”  undiagnosed during the first 22 weeks or when the continuation of pregnancy poses a critical risk to the mother’s life, on medical verification.

In addition, the Bill restores several rights and obligations removed under the Act of 2010, in particular the fundamental right of medical staff to conscientious objection, the right of parents to be aware of the pregnancy of their minor daughter, the obligation to inform the pregnant woman and the reflection period. Finally, it prohibits pro-abortion advertising.

In fine, both the concerns of those who are “pro-abortion” and the optimism of those who are “pro-life” are excessive. Legally, this Bill does not violate any European or International norm. Instead, the text is aligned with the European “standard” where the Act of 2010 was not. The decision to reinstate the prohibition of abortion on demand is the most significant provision; such a ban has become a minority in Europe, but it is not unique and does not violate the European and International law.

However, the future application of this Bill remains unpredictable and depends largely on the political and cultural circumstances.
This Bill, while respecting European and international law, reflects a new political trend in the West which no longer considers abortion as a “freedom and progress”, but as a violence which needs limiting and seeks to improve the legal protection of unborn children. This trend, which is already strong in the United States[1], has begun to assert itself in Europe.

A new prolife trend in Europe
This Bill goes against the dominant thinking inherited from the late 1960s and is a policy reversal. Although spectacular, this change fuels a new trend moving to replace the policy of “systematic abortion.” This policy is in progress in Europe and the United States where several states have recently discussed and often adopted new laws to improve the protection of human life.

This is the case in the UK where the question of shortening the legal limit for abortion is often raised[7], but also in Switzerland which is preparing to vote in a referendum on the abolition of public funding of abortion[8]. In the past years, Russia adopted legislation strengthening the rights of the mother and child, while the Polish Parliament[9] has discussed and adopted, at first reading, new restrictions on abortion introduce by a citizen initiative. In the Baltic Latvia & Lithuania[10] where the Parliaments are currently considering the abolition of abortion on demand, In Hungary, the 2011 Constitution and  new laws protect human life from conception and promote the family[11]. In Turkey[12], the Government has tried to reduice the delay of abortion sown to four or six weeks, but had to renounced under the EU political pressure, while in Macedonia, the government succeeded restricting access to abortion[13]. Also in Norway[14] very recently, the Parliament has lowered the legal delay for abortion, fully guaranteeing the right to life of the child after 22 weeks. At the European level, the European Parliament, the Council of Europe[15] and the European Commissioner for Human Rights[16] have called for the prohibition of sex selective abortion; the EU Parliament having also recently rejected a draft Resolution promoting abortion as a universal “human right”[17].

This trend is even more pronounced in the United States where a true cultural transition is taking place. Thus, between 2010 and 2013, U.S. states have adopted 205 new restrictions on abortion, which is more than in the previous ten years[18]. They included introducing bans on abortion beyond 20 weeks in a dozen states[19], strengthening protection of unborn children with disabilities, the imposition of stricter conditions on clinics or further regulation of chemical abortion. North Dakota has reduced the legal limit to six weeks. In the same way, the number of states hostile to abortion has doubled between 2000 and 2013 from 13 to 27[20]. Finally, only 12% of the U.S. population still feels that abortion is morally acceptable, as opposed to 49%[21] who consider it immoral. The change is as profound as it is spectacular.

Abortion as an issue, not a solution
So after having rather extensively liberalised abortion, Western countries now seem to consider abortion more as an issue than as a freedom and the solution to the social problems of the mother. This new policy aims not only to improve the protection of the lives of unborn children. It also aims to support pregnant women and break their solitude in facing an unexpected pregnancy, to make adults more responsible, to support families as well as supporting the demographics and the economy. This policy is not intended to remove all abortions, but wants to reduce the number only to exceptional circumstances linked to the health of the mother.

This trend is partly motivated by a desire to sustain the demographics, but also, probably, by a “progress of conscience” about the nature of prenatal life and abortion. Advances in biology contribute to awareness of the concrete existence of a person from before his birth. As for the violence and suffering caused by the act of abortion itself, the militant discourse supporting abortion offers no response. Fewer and fewer doctors agree to practice it as the generations continue. The idea, inherited from the sexual revolution of the 1960s, that abortion is a “progress and freedom” is questioned. Thus, after several decades of extensive practice, the experience has lead governments to try another policy.

Spain is currently the subject of strong criticism, as other European governments keen to restrict abortion were. Amongst these governments, some have resisted criticism and managed to adopt their Bill, others have succumbed to the pressure, such as Turkey. It is probably in order to answer these criticisms that the Spanish Minister of Justice, Alberto Ruiz Gallardon, will soon come to Brussels; but his intention is primarily to explain and promote this new policy in Europe. He is “confident that this initiative will be followed by other parliaments of other European nations.”[22]

Just like the Zapatero government wanted to create a “right to abortion” in Spanish culture, the current government wants to promote a culture that protects the life of unborn children, strengthens the responsibility of adults and responds positively, by other means than abortion, to the difficulties of pregnant women.

In Spain, as in the rest of Europe, the abortion rate is very high and constitutes a public health problem[23]. The question is whether this Bill will be accompanied by a cultural change if society’s realisation of its responsibility to protect and support life will be added to the current understanding of the humanity of unborn life and the violence of abortion. The majority of abortions are caused by socio-economic difficulties, particularly related to financial resources, housing, employment[24] or resulting from the pressures from the father. Rather than encouraging abortion as the main solution to these problems, especially in times of crisis, society and governments should fulfil their social responsibilities. Such a law cannot reduce significantly the abortion rate if society and governments do not engage in policies to prevent abortion, giving women and couples the means to fulfil their responsibilities. The responsibility of the home life should not weigh only on the mother but also on the father, and more broadly on society whose survival is assured by the renewal of generations.

 

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