Prior review of the constitutionality of a referendum on abortion
Decriminalisation of abortion
Conditions governing referenda
RULING Nº 617/06
15 of November of 2006
The various issues raised by the question of the proposed referendum on the decriminalisation of abortion should be viewed in the context of a complex cultural setting. The Court cannot ignore history or the prevailing current opinion. Three main topics arise in this context: the relationship between the concept of a democratic state under the rule of law (Article 2 of the Constitution) and the need to discuss values; the question of punishment as a solution to the problem of crime; and the justification of criminalisation on the basis that punishment is necessary.
In the field of comparative law, there is a tendency to favour legal solutions which decriminalise, or provide for diminished responsibility in certain circumstances. As far as we know, none of the group of democratic countries under the rule of law has "turned the clock back" towards criminalisation. This applies both to states which have introduced time limits as a solution and to those which have opted for therapeutic grounds. During the legal and political debate, some people have maintained and developed their stance against the decriminalisation, while others have taken positions which, within the framework of Portuguese legislation, tend to acknowledge the moral difficulties involved in prosecuting women who have illegal abortions.
Those in favour of decriminalisation advocate prevention and public health, highlighting the moral and social difficulties encountered by women who have abortions. There is thus a tendency to place the debate on a level which is not exclusively ideological and to base decisions on reasoning that takes into account the individual's life plans, the practical and social ramifications of motherhood, emotions such as anxiety, that can cause women to reject maternity and, in general, the role of emotions such as compassion in enlightened moral judgment and political decision making. Those who do not want to see decriminalisation spread warn of the dangers of the "culture of death", referring pragmatically, to the criminogenic effects of decriminalisation and the impact it has on the value society as a whole places on life.
Something shared both by advocates of decriminalisation and those who oppose it is that they are tackling the issue of abortion with ideas which are not fixed, they are acknowledging that a problem exists, and are using arguments which are easy to follow by all concerned, and which have repercussions in their lives. As a result, the debate on the decriminalisation of abortion, within a certain time limit and under certain conditions, has been addressed as a separate issue from the pure and abstract manifestation of values such as life or freedom.
The Constitution allows a certain degree of leeway for decisions concerning the criminalisation, justification and decriminalisation of abortion. This is because, from the constitutional perspective, criminal law is not considered as a categorical imperative imposed on the ordinary lawmaker. On the contrary, it is governed by the comparative analysis of values and interests in a historical context, justified by necessity in the field of criminal policy and by the delivery of justice to resolve criminal problems on a day to day basis. Such a leeway is not impeded by the recognition of rights, which cannot be the subject of a referendum. The referendum would be concerned with the balance between conflicting laws and values, or possible solutions to such a conflict through criminal law, rather than with the rights themselves.
The Court takes the view that, in cases of conflict between constitutionally guaranteed rights and values and instances where it is necessary to draw a line between them, to bring them into conformity, there is nothing to prevent one of the authorities with responsibility for interpreting them, such as Parliament, from submitting them to the citizens' vote under certain circumstances. This conclusion is valid provided that the possible solutions do not lead to the Constitution being modified or violated, but remain at the level of facilitating the development of constitutional values.
The Constitutional Court is also charged with examining the content of the subject of the referendum for conformity with the Constitution. The Court has to verify the compatibility of the 'yes' and 'no' outcomes with constitutional principles and standards. It simply has to examine whether either answer (or even both) to the dilemma behind the question results in a violation of the Constitution. It has to ascertain whether the essence or nature of the replies constitutes a violation of the Constitution which would have repercussions on the legal solutions.
Even if one considers the dignity of intra-uterine life as a legal interest protected by the Constitution, irrespective of when it is deemed to begin, an affirmative answer to the referendum question cannot be declared unconstitutional. A "yes" vote does not presuppose abandoning legal protection of intra-uterine life; moreover, it amounts to a comparison of values and even a harmonisation, a practical conformity, a co-ordination and a combination of the legally protected interests at issue, in order to avoid completely sacrificing some for the benefit of others. The only conclusion to be drawn is that, in this first phase, freedom to pursue a life project is what prevails in terms of the absence of punishment. There is no intention, or indeed possibility, of this leading to the "legal abandonment" of intra-uterine life. At this point, we are involved in the realms of criminal liability, where the principle of the need for punishment prevails; it is no longer a simple argument about the recognition of values, or as to what deserves legal protection.
A "No" vote would prevent legislative changes to the present system, so that abortion would not be a criminal offence during the first ten weeks of pregnancy, subject to the conditions mentioned in the question. This would not be unconstitutional either, as a 'no' to decriminalisation would not affect the current system. It permits a comparison of values which exclude criminal proceedings in the event of serious violation of the rights of the pregnant woman, such as her right to life and health, her personal dignity (moral abortion) or even the moral and material conditions of her maternity (eugenic abortion). Not to acknowledge such exclusions from liability might affect such constitutional principles as fault and the need for punishment. Furthermore, the criminal law system provides, inter alia, for excuses which prevent punishment for deeds which are not reprehensible because of a serious existential conflict. Neither would a negative answer rule out a broader solution tending towards exclusion from liability, which might be chosen by Parliament in accordance with constitutional principles.
The President of the Republic requested a preventive review of the constitutionality and the legality of the proposal for a referendum approved by the Parliament, on the question: "Are you in favour of the decriminalisation of abortion if it is carried out at the request of the woman, in the first ten weeks of pregnancy, in a legally authorised health care establishment?"
The Constitutional Court had already ruled on this question, in its Decision 288/98, but there are reasons which make it necessary to take into account today certain factors that were not considered at the time. For example, there is still a tendency, in the field of comparative law, to confirm legal solutions which decriminalise, or provide for diminished responsibility in certain circumstances. Also, during the legal and political debate, stances against the decriminalisation of abortion been maintained and developed, but other positions have been taken which tend to acknowledge the moral difficulties involved in prosecuting women who have illegal abortions; and the debate on the decriminalisation of abortion within a certain time limit and under certain conditions has been considered as a separate issue from the pure and abstract manifestation of such values as life or freedom.
Current legal conditions require that other factors be taken into account. Three fundamental questions are submitted to the Court:
a. the conformity of the question with the provisions of the Constitution and the law, with particular attention to the clarity and objectivity of the wording and its dilemmatic or binary character;
b. the composition of the electorate;
c. whether either of the possible answers to the dilemma raised by the question could be incompatible with the Constitution or the law.
The Court held that the proposed referendum was in conformity both with the Constitution and with the law. All of the technical and institutional conditions had been met, including those concerning the electorate, in keeping with the main provisions of the Portuguese Constitution and the law governing referendums. In terms of content, the Court considered that whether the answer to the referendum question was "yes" or "no", it would not necessarily result in a legal solution incompatible with the Constitution.
The question to be posed in the proposed referendum is identical to the one which was reviewed for constitutionality and legality in Decision 288/98. In 1998 the Portuguese people were consulted by referendum on this question. However, although the majority of those who voted answered "no", the result is not legally binding under Article 115.11 of the Constitution (of those who voted, 50.9% voted "no" and 49.1% "yes", but 68.1% of the registered electorate abstained). The same question was again proposed for a referendum in 2005, but the Constitutional Court, in Decision 578/2005, held that the requirements of Article 115.10 of the Constitution had not been fulfilled. It did not examine the content of the question on this occasion.
Although the question is the same, there were reasons why the Constitutional Court did not simply refer to the merits of Decision 288/98. Firstly, there are several new members of the Court. In addition, account must be taken of the legal, political, social and criminal justice background that evolved between 1998 and 2006. Also, at an international level, both in comparative and European law, important contributions to the debate have been made. In respect of the debate on punishment and criminal policy, new factors have emerged which must be taken into account. In the public sphere, the fact that there has already been a referendum on the same question which has been declared constitutional and legal is particularly important. The public debate about the punishment of women who undergo illegal abortion has changed in certain essential ways, and new ideas and proposals have emerged. Lastly, when the previous decision was taken, the dissenting judges gave reasoned opinions, which is justification for some of the arguments put forward by the majority to be re-examined.
The Court's decision was reached by a majority of seven judges to six, the latter having expressed dissenting opinions.