Being far from Spain and somewhat tired of our sad politics means that I am late to the debate on the constitutionalization of abortion. Furthermore, the numerous and well-argued reflections published by my colleagues make it difficult to contribute anything new.
Summarizing these analyzes in a telegraphic message (perhaps too simplified), I would say: as the jurisprudence of the Constitutional Court now stands, which understands that article 15 of the Constitution guarantees women the fundamental right of self-determination with respect to the voluntary interruption of pregnancy, Including abortion in article 43 – the one relating to the right to health – weakens its guarantees and degrades it.
This is only explained because the procedure for reforming article 15 is impossible to achieve and the ordinary process forces the PP – with its decisive votes – to speak out in an area where internal contradictions are foreseen. Something that PSOE strategists believe can weaken the main opposition party.
I would not like to repeat what has already been said. I would prefer—almost on the shoulders of giants—to leave behind the constitutional technique and political tactics already perfectly explained, to reflect on Spanish constitutional culture. To address it, I must go back to the 19th century and the origins of liberalism.
As is well known, The Constitution of Cádiz of 1812 was admirable, but too advanced for its time. So much so that he lost the support of sectors that, without being strictly absolutist, did not identify with his radicalism. For this reason, when the progressives had a second chance in 1837, they developed an agreed constitution, acceptable to all sensitivities opposed to despotism.
Mónica García, Minister of Health, at the Council of Ministers last Tuesday.
However, the moderates buried that pact in 1845 with their conservative Constitution and, with it, the sense of preparing texts acceptable to all constitutionalist currents was lost. From there, Spain alternated between progressive and conservative constitutionsa pendulum that even reached the Constitution of 1931, proudly described as left-wing by its own authors.
The constituents of 1977-78 realized that this was not the way and assumed that the Constitution should belong to everyone, a text that would allow political alternation, without the need to change it or twist its meaning.
This consensus was projected in the regulatory procedures: very large majorities for the major constitutional issues of structuring the State and ordinary majorities (absolute or simple) for everyday policies. Hence, a socialist majority can carry out, without departing from the Constitution, a very social economic policy and a right-wing party, a completely constitutional liberal one.
This explains the various models of teaching, healthcare, etc.
The first democratic governments maintained this spirit and the autonomous State was developed by consensus. As also happened with the first constitutional reform of 1992, approved at the initiative of all relevant parties.
However, With the new century, this culture of two types of agreements was weakened.
The Catalan Statute of 2006 was approved with only the formal constitutional majority, the first without consensus and dragging with it serious constitutional problems.
Along the same lines, in 2011, to establish the limit of the public deficit (art. 135 CE), the two major parties promoted the second constitutional reform, without counting on the others.
In 2024 they repeated the initiative with the third reform, that of article 49, to introduce the term “disability”.
“Is it acceptable to ‘shield’ in the Constitution any legal right that we consider very important, fearing the triumph of an opposing majority?”
Now, The government project to constitutionalize abortion takes another step in abandoning the culture of consensuswhich kept the constitutional text away from partisan brawls.
It is no longer just that the reform is used as a political weapon to weaken the opponent. Government texts admit that it is about “shielding” the right to abortion.
Is this loyal to the consensus Constitution? Said in Kantian terms of the categorical imperative: is it acceptable to “shield” in the Constitution any legal right that we consider very important, fearing the victory of an opposing majority and despite not having included its reform in our electoral program?
Before responding, it is worth pointing out that the president of the Community of Madrid is also not acting loyally at the constitutional level by declaring that she will not create the registry of conscientious objector health workers required by the Organic Law on sexual health.
And this although its actions do not innovate, but rather follows the example of many socialist communities that refused to apply Royal Decree-Law 16/2012 on the sustainability of the National Health System.
Or even though it can be said that she imitates the last president of Andalusia, when in 2016 she approved a decree-law reducing the working hours of civil servants, unconstitutional from the title to the sanction for invasion of the powers of the State, and then asked the then president Rajoy that he did not resort to it.
Disloyalties of some before; from others, now.
Returning to constitutional reforms designed to “shield” norms susceptible to repeal by future adversaries, let us perform a Kantian thought experiment to see if such behavior serves as universal legislation.
“Abortion should not be constitutionally protected, nor should the absolute free market be protected, nor should any other controversial issue that can be addressed through ordinary legislation”
Instead of shielding abortion, public health or any other social right that the left fears losing, Let’s imagine that some rabid liberals wanted to “shield” the free market and they will eliminate the never applied article 131 of the Constitution, which allows the planning of “general economic activity.”
Personally—and being in India—I think it would have many advantages: after years of stagnation, the Indian economy soared after abandoning planning and embracing the free market in the 1990s (by the way, both decisions were made by the same party, the Congress).
Would it then be good to repeal planning in the Spanish Constitution? The response should be the same as when the issue is “shielding” abortion or any other policy accepted by some and rejected by others.
No matter how liberal one is (as is my case), the answer must be no. It is convenient for the democratic health of Spain that the defenders of state intervention – wrong in my opinion – know that the Constitution allows them to legislate in accordance with their ideology.
Perhaps some of those who from the left believe that all their public policies must be shielded, think that those of us who do not see it clearly It’s not that we’re wrong, it’s that we’re evil.. But talking about that would take us to another topic, moral philosophy, for which I no longer have space.
Let’s just say that we are all democrats and we respect each other.
Thus, if neither abortion nor the absolute free market, nor any other controversial issue that can be addressed through ordinary legislation, should be protected, I can only think of one conclusion: please, Spanish politicians, do not follow the path of the Indian Government.
The government of Narendra Modi, day in and day out (the penultimate thing, trying to control the electoral commission) seeks to extend its vision of the world and its social control, to the point that it has already earned the academic label of “electoral autocracy.”
Apply the famous phrase attributed to Voltaire to our The law of laws: I do not agree with your policy at all, but I will leave the Constitution as it is so that you can do it if you win the elections.
*** Agustín Ruiz Robledo is a professor of Constitutional Law at the University of Granada and Visiting Professor de la BITS Law School from Bombay.