Is the right to abortion really protected by incorporating it into the Constitution?

BarcelonaAfter noting the reluctance of some regions governed by the People's Party (PP), such as Madrid, to guarantee the right to abortion for women who request it, Pedro Sánchez announced that he would incorporate this right into the Constitution to "protect" it. The Spanish government's path is to reform article 43 of the Magna Carta for its incorporation: "The right of women to voluntary termination of pregnancy is guaranteed. The exercise of this right, in all cases, will be guaranteed by the public authorities, ensuring its provision under conditions of effective equality, as well as the protection of women's fundamental rights." Now, does this path really protect that right? In recent hours, various voices from the legal world have questioned it.

This was done by the professor of constitutional law at the University of Oviedo, Miguel Presno, who on Monday made a thread on X in which he warned that by resorting to this route there was a risk that this right would not be protected as fundamental, as it is currently. "Abortion would cease to be a fundamental right as currently understood by the legislator itself and, above all, by the Constitutional Court, linked to Article 15 of the Constitution [on the right to life and to physical and moral integrity] interpreted with Article 10.1 [on the dignity of the person], and would affirm its place as the governing body of social and economic policy," the Magna Carta. In conversation with ARA, the jurist adds that there are currently two rulings from the Constitutional Court in which the high court views abortion as a fundamental right and recalls that the proof is that it is also regulated by an organic law. By reforming Article 43 to include this right, "you symbolically tell society that it is no longer a fundamental right," warns Presno, because this article is within the principles that govern economic policy.

That is, it would lose its protection as a fundamental right: it would be regulated by ordinary legislation, and women would not be able to appeal to the Constitutional Court (CC). "It's easier to limit that right if it's incorporated into Article 43," warns the jurist. Montserrat Nebrera, a professor of constitutional law at the International University of Catalonia, agrees, predicting that the mandatory report that the Council of State should issue—this Tuesday, the Council of Ministers began the process of requesting it—may state that the reform of Article 43 is not "related" to this right, but rather the article that should. Legal experts warn that using Article 43 leaves abortion in a "more vulnerable position" than it currently is, because it is already "shielded" under the CC doctrine.

There are other voices, however, who do not see it the same way. This is the case of Tasia Aránguez, professor of philosophy of law at the University of Granada, who believes that incorporating the right to abortion into Article 43 of the Constitution is complementary to the jurisprudence generated by the Constitutional Court. "Women will be able to continue to seek protection against the denial of abortion, because the Constitutional Court's jurisprudence linking abortion to Articles 10 (dignity) and 15 (life and integrity) is still in place," she asserts. She adds that the right to abortion will continue to be regulated by an organic law even if it is explicitly incorporated into the Constitution.

The path of reform

What is the reason why the Spanish government has chosen this path? The argument used this Tuesday by Spanish President Pedro Sánchez is that this way, regions that are not guaranteeing this right will be forced to do so. "We are taking a step towards the victory of women and the recognition of their rights in the face of the reactionary wave that seeks to curtail them," the Minister of Equality, Ana Redondo, later emphasized. However, there are many rights enshrined in the Constitution that are not being fulfilled, such as the right to housing, which is found in Article 47. From Sumar, the argument they give to support this path is that it is the quickest way to change the Constitution. But what support is needed?

It should be done through Article 167, which requires a three-fifths majority in Congress and also in the Senate. This implies that the PP must have a future, and the Popular Party rejects it. Therefore, despite being the least burdensome option, there is currently no guarantee that it will succeed. If the right to abortion were included in the fundamental rights section of the Constitution (in Article 15, for example), this would require the reinforced reform route: a two-thirds majority in Congress and the Senate is needed, followed by the dissolution of Parliament, elections, and submitting this issue to a referendum. "It's the implicit intangibility clause, meaning that part of the Constitution is not touched," Nebrera recalls. If the three-fifths majority option were to succeed, there would also be the possibility that a dozen deputies in Congress or the Senate would request a referendum on the reform. Yesterday, Pedro Sánchez did not rule it out: "It's an option," he told SER.