Referendum on the decriminalisation of abortion
RULING Nº 288/98
17 of April of 1998
Inasmuch as the Constitutional Court is responsible for reviewing the constitutionality and legality of national referenda before they take place, it must also ensure that the subject of a referendum is, in substance, constitutional: deciding whether the question posed in a referendum is lawful is thus part of the process of reviewing the constitutionality of the referendum. Ultimately, the majority principle must be reconciled with the principle of constitutionality.
Under Article 24.1 of the Constitution, human life is inviolable. The judgment resolves the question in three stages.
The issue of whether to decriminalise abortion may be regarded purely as a matter of criminal policy: the legislative authority may choose whether or not to make abortion a criminal offence because, while life in utero may constitute legal property (thus entailing potential conflict with other rights of the woman in question), it is not protected by the right to life enshrined in Article 24.1 of the Constitution.
At the same time there is the secondary consideration that, as well as guaranteeing every individual a basic (subjective) right to life, Article 24.1 also extends to the (objective) protection of life developing in a mother’s womb (life in utero); there is thus a constitutional obligation to protect that life. However, the protection of the human embryo cannot be as substantial (nor can it be ensured by the same methods) as the protection of the subjective right to life inherent in every individual person from birth onwards.
The ordinary legislative process must provide ways of protecting human life in the womb while at the same considering the various interests at stake and balancing the constitutional protection of legal property against other rights and values, according to the principle of the weighing of interests.
In other words, the need to strike a balance between the protection of the human embryo and a woman’s other rights, including her right to develop freely as a person (in terms of autonomy and personal self- determination and the freedom to plan her own destiny), particularly in association with the right to motherhood as a conscious choice, may justify the legislative option of decriminalising the termination of pregnancy in the first 10 weeks. Any conflicts of constitutionally protected legal property can be resolved by the legislature and, if need be, there is legislative scope, in conformity with the Constitution, for deciding whether or not to make the deliberate termination of pregnancy a criminal offence.
Third - even if abortion is deemed illegal - it does not necessarily imply that a positive response to the question asked in the referendum would be unconstitutional because, in terms of constitutional law, criminal law controls must be a last resort for the application of cultural, economic, social and health measures, not a substitute for such measures. Therefore, given that the constitution does not require abortion to be deemed an offence, there is a constitutional legislative option to attach or not to attach criminal sanctions to the deliberate termination of a pregnancy, by the woman’s choice, within the first ten weeks, as envisaged in the draft referendum under consideration. It is also the case that reasonably well-off women who wish to have abortions can do so with impunity in clinics elsewhere in Europe, whereas poorer women who find themselves obliged to have an abortion not only run the risks associated with illegal medical treatment but also face the threat of criminal sanctions.
Notwithstanding, the Court stipulated a number of legislative measures and formal conditions to be observed if the response to the referendum were positive: for example, a requirement that the woman seeking an abortion shall have a consultation, including a personal interview, with a specialised counselling service; and a guarantee that she be given time to consider her decision.
According to Article 115.8 of the Constitution (as revised in 1997), the President of the Republic must submit referendum proposals referred to him by the Assembly of the Republic, or by the Government, to the Constitutional Court for preliminary review to ensure that they are constitutional and lawful. The resolution referred by the Assembly of the Republic to the President in this case frames the question to be asked in the national referendum as follows: «Do you agree that the deliberate termination of pregnancy should cease to be a criminal offence if it is carried out, by the woman’s choice, within the first ten weeks of pregnancy, at a legally recognised medical establishment?»
Since its 1989 revision, the Portuguese Constitution has included a provision for national referenda. Under Article 115, the President of the Republic may ask the electorate to express its will directly in a referendum, the outcome of which shall have the force of law.
The constitutional revision of 1997 gave the Constitutional Court the task of examining in advance the constitutionality and legality of national, regional and local referenda, including the electoral conditions under which they are held.
In this case, the Constitutional Court ruled on whether the subject of the question to be asked in the referendum was unconstitutional - i.e. whether either of the two possible responses might require legislation that infringed constitutional principles or provisions.
In its final decision, the Court declared the referendum both constitutional and lawful, on the following grounds:
a. the proposal to hold a referendum had been approved by the competent body;
b. the subject of the referendum was an important question of national interest which had to be decided by the Assembly of the Republic through the adoption of legislation;
c. the subject of the referendum in this case did not fall outside the general scope of referenda;
d. the fact that the question at issue in the referendum had to be the subject of legislation which was still under consideration (and that the relevant bill had already been submitted for a vote in a general debate in the Assembly), did not prevent it from being the subject of a referendum;
e. the referendum addressed a single issue, by means of a single question, without any qualification, introduction or explanatory comment, and could thus be answered with yes or no;
f. the question asked met the criteria of objectivity, clarity and exactitude;
g. the referendum proposal was in accordance with the formal requirements of the Organic Law on referenda in force at the time;
h. the fact that only registered electors within the national territory could vote in the referendum was in accordance with electoral requirements;
i. the Constitutional Court has jurisdiction to decide whether the referendum question presented the electorate with a dilemma of which one outcome might suggest an unconstitutional legal solution;
j. neither an affirmative nor a negative response to the question necessarily committed the government to an unconstitutional legal solution.
The problem of abortion has twice been referred to the Constitutional Court, in both cases on points concerning the law approved by the Assembly of the Republic in 1984, amending certain articles of the Criminal Code and allowing abortion to be carried out in certain circumstances.
In Judgment no. 25/84, on proposed legislation referred to it by the President of the Republic for preliminary review, the Court did not declare the provisions in question unconstitutional. In Judgment no. 85/85, in a review of legislation already enacted, it upheld its previous interpretation and did not declare the new Criminal Code provisions on the deliberate termination of pregnancy to be unconstitutional.
The Court delivered a majority judgment, with six judges dissenting.