The legal conflict between the right of women to voluntary interruption of pregnancy and that of health professionals to object has been present in the courts since the 1980s. Although conscientious objection linked to abortion is not explicitly provided for in the Magna Carta as a fundamental right, the Constitutional Court has said that it is part of the content of ideological and religious freedom, that they do have that consideration. However, it is neither an absolute right nor should it take precedence over medical care for women before and after having undergone the intervention.
Currently, it is the 2010 sexual and reproductive health law that expressly recognizes the right of “health professionals directly involved in the voluntary interruption of pregnancy” to object. But “without the access and quality of care of the provision being impaired”. Moreover, the legislation does not protect them to refrain from complying with their legal duties of prior information and post-surgical care. And it establishes that the refusal to practice must “be manifested in advance and in writing.” This is stated in article 19.2 of the law.
However, and despite the fact that the legislation establishes legal and safe access for women to the intervention, in some communities abortions are hardly performed. What reported THE COUNTRY recently, “Madrid public hospitals deal with 0.7% of voluntary interruptions of pregnancy. From 2010 to 2019, 1,608 abortions have been performed in Madrid in centers of the Madrid health system and 210,755 in private clinics derived from the public network ”.
In this regard, a judgment of the European Court of Human Rights stands out, which in 2012 condemned Poland for making it difficult to carry out a legal abortion. The victim, a 14-year-old girl, had been raped, but was harassed by anti-abortion organizations and pressured by several doctors not to have an abortion. She had to go to four Polish hospitals to end her pregnancy. In one of them, the head of Gynecology tried to convince her, along with a priest, not to do it. Failing to do so, the doctor alleged conscientious objection. More than a month after obtaining the official certificate that allowed her to access abortion, and after clandestinely traveling 500 kilometers, the youngest rape victim was able to end her pregnancy. The Court determined that the girl had been treated in an inhuman and degrading manner, affecting her freedom and safety. The sentence can be found in this link and the chronicle published by EL PAÍS in this other.
Spanish judges have also ruled on the content of the right to conscientious objection, as did the Superior Court of Justice of Andalusia in judgment 1729/2017, of September 22, 2017. It dismissed the appeal of a doctor from family that claimed to be the owner of a right of general scope. “The ethical or religious reservations of the health professionals integrated in the Public Health Services authorize them to refrain from directly practicing the intervention of voluntary interruption of pregnancy, but in the opposite direction, it imposes on them the obligation to provide assistance both before and after said pregnancy. intervention ”, reasons the resolution.
Limits to religious freedom
And it is that, as the Supreme Court argued in 2009, “religious and ideological freedom not only finds a limit in the necessary compatibility with other constitutionally guaranteed rights and goods, which is something common to practically all fundamental rights, but also limits with a specific limit and expressly established in article 16.1 of the Constitution: the maintenance of public order protected by law “.
This argument was used by the Superior Court of Justice of Madrid in 2012 to dismiss an appeal by the Toledo College of Physicians against the Medical Code of Ethics approved by the General Council of Official Associations. “The doctor who legitimately opts for conscientious objection, to which he has the right, is not exempted from informing the woman about the rights that the State grants him in this matter or from resolving, by himself or through the help of another doctor, the medical problems that the abortion or its consequences could raise “, indicated the litigious text.
Although the Toledo doctors argued that they were preventing them from exercising the right to object, the court said that they were really raising “conscientious objection as an absolute right against any other right, including the right to life, since it cannot be understand otherwise that the possibility of solving a vital risk derived from the practice of an interruption of pregnancy is questioned (…) A priori, the Colegio de Toledo cannot hold that the obligations derived from said precepts constitute a violation of Article 16 of the Constitution because it starts from an absolute priority of conscientious objection that is equivalent to its consideration as a primary and absolute right that must be respected by the rest of the recognized rights “. This is stated in judgment 807/2012, of July 6, 2012, of the Contentious-Administrative Chamber.
Register of objectors
What reported THE COUNTRY This Tuesday, the Ministry of Equality prepares a reform of the abortion law in which it wants to include the obligation to create a registry of conscientious objector health professionals to guarantee that voluntary interruptions of pregnancy are practiced in public health.
A similar case was already ruled by the Constitutional Court in 2014, which endorsed the Navarrese registry of conscientious objectors for the practice of abortion. The guarantor court dismissed the appeal of the PP against the regional law that regulated it. Approved by the regional Parliament in 2010, it tried to overturn the argument of the Government of the Navarrese People’s Union, which argued that abortions in public health were impossible due to the conscientious objection of health workers. The Constitutional Court said that it was “in accordance with the conciliation that must exist between the exercise of this right and the obligation of the autonomous public administration to guarantee the health provision of the voluntary interruption of pregnancy in the legally foreseen cases”, as stated in the sentence 151/2014, of September 25.