Constitutional protection of the right to life
Duty to protect intra-uterine life
Exclusion of unlawfulness in cases of abortion
RULING Nº 75/2010
23 of February of 2010
In an initial phase of pregnancy, the minimum content of the duty to protect intrauterine life, which falls to the State, does not require that reasons from a predetermined list be given in order to be able to put an end to that life.
The Court reaffirmed earlier jurisprudence, saying that intrauterine life lies within the scope of the constitutional protection of the right to life, but only as an objective constitutional value. It emphasised that this only implies the existence of a duty to protect; the Constitution does not predetermine a specific form of protection. It is up to the legislator to choose one, while respecting not only the prohibition on insufficiency (the guarantee of a minimum protection), but also the prohibition on excess (to the extent that it affects other constitutionally protected assets). Inasmuch as penal sanctions are the form of penalty which does the most injury to those assets, they can only legitimately be used when it is necessary to make the protection so efficient that only they can ensure the extent required by the Constitution. The fact is that in the present case these requirements for aptness and need are not met, for reasons which concern the specificity of the conflict posed by the decision whether to abort: an “inner”, existential conflict within the personal sphere of someone who is simultaneously causing and suffering the injury. Within this singular framework it is possible to argue that in the initial phase of pregnancy, the State would do a better job of fulfilling its duty to protect by promoting a decision which is thoughtful, but for which at the end of the day the pregnant woman is left to be responsible, than by threatening her with a penal punishment.
In the Constitutional Court’s opinion the operative discipline of the Law whose constitutionality it was asked to control did a good enough job of fulfilling the imperative to protect, and it was not clear that there was any position of indifference or neutrality towards the decision the pregnant woman is called on to make. Even if its dissuasive purpose is not expressly stated, only the desire to make an effort to protect not only the woman’s health, but also prenatal life, makes it possible to comprehend the procedures that are required for an abortion to occur. The preconditions for non-punishability include an obligatory session in which the pregnant woman must be informed about the “conditions which the State can make available in the form of support for her to go ahead with her pregnancy and the child’s birth”.
The evaluation of whether or not the duty to protect prenatal life has been fulfilled must look at all the infraconstitutional legal measures that exist in this respect, and not just the specific rules governing abortions in the first ten weeks of pregnancy. From this point of view it is necessary to take into account a whole variety of normative regulations and public benefits and services in the fields of sex education and family planning and support for mothers and the family – all of which are object of numerous pieces of legislation, which the Ruling lists – in their role as protective instruments and factors that work towards a containment of the number of abortions.
This case involved two requests for the successive abstract review of the Law that provides for an “Exclusion of unlawfulness in cases of abortion”. This Law said that abortion performed at the woman’s choice during the first ten weeks is not punishable, on condition that it is carried out by or under the direction of a doctor, at an official or officially recognised health establishment, after an obligatory appointment designed to provide the pregnant woman with access to the information that is relevant to enabling her to make a free, aware and responsible decision, followed by a reflection period of at least three days.
The core issue was the norm (contained in the Law that was the object of constitutional control) which said that “Abortions performed by a doctor, or under his direction, at an official or officially recognised health establishment and with the consent of the pregnant woman are not punishable when: (...) Conducted at the woman’s choice, within the first ten weeks of pregnancy”.
The Constitutional Court received two petitions asking it to consider whether various aspects of the above Law complied with the Constitution – one at the initiative of a group of thirty-three Members of the Assembly of the Republic, and one made by the President of the Legislative Assembly of the Madeira Autonomous Region (RAM). The President of the Court decided that the latter request should be incorporated into the former.
Both petitions alleged that the Law suffered from a variety of defects involving both formal and material unconstitutionality.
The allegations of formal unconstitutionality included the view that a legislative act had been passed on the basis of a referendum when the latter did not possess binding efficacy, and that the Assembly of the Republic did not possess the legitimacy to pass it because the electoral manifestos of the two largest parties with seats in the Assembly had contained the commitment that they would only agree to change the rules governing abortion if a referendum said they should.
The Court did not accept that these arguments were valid, inasmuch as the legal rules governing referenda say that the legislative organ with the competence to publish the legislative measure whose normative purpose corresponds to an affirmative answer to the proposal that has been submitted to the electorate is only prevented from doing so in the same legislature if two conditions are met: that the referendum was binding; and that the negative answer won. With regard to the second of the two alleged formal defects, the Court said that the mechanisms which the Constitution typifies for the exercise of the sovereignty that lies with the people do not include any which would make it viable to control any failure to respect commitments made to the electorate by invalidating acts which do not comply with the content of the electoral manifesto that was approved by voters.
It was alleged that the Law suffered from the following material defects: it removed the penalties for abortions performed at the woman’s choice during the first ten weeks of gestation, without requiring her to give any reasons to justify her decision; it completely excludes the male progenitor from both the responsibility for the process and the making of the decision to abort; the information that is to be given to the pregnant woman with a view to her decision is selectively biased; it means that human life is totally unprotected for the first ten weeks, and it requires the State to contribute to the elimination of human lives, for example via the National Health Service (SNS) and the inherent social benefits and services; whereas abortion is now acknowledged to be an act that entails a risk to the woman’s physical and mental health, the regime created by the Law releases the State from its function of providing solidarity and protecting physical and psychic health; and the Law leaves it to a Ministerial Order to determine the information that is given to the pregnant woman in order to help her make her decision (the reflection period of at least three days is counted from the moment at which this information is provided), and this is unconstitutional because what is at stake are matters involving fundamental rights.
In its Ruling the Court considered that all these partial questions led to the central question of whether, and to what extent, it is permissible not to use penal sanctions as an instrument for protecting intrauterine life.
The Court also rejected the petitioners’ allegations that the minimum reflection period (3 days) is insufficient, and that the woman’s right to physical and psychic health, the right to freedom and the principle of proportionality are all violated. It also rejected those concerning the fact that the male progenitor has no part in the decision-making process, that doctors who are conscientious objectors in relation to abortions are not allowed to take part in the obligatory information session, and that the information provided in that session is regulated by Ministerial Order.
The issue in the petition made by the President of the RAM Legislative Assembly was the organisational/formal validity of the normative contents of the Law. The petitioner argued the existence of a breach of legislative, administrative, financial and regional autonomy, and of the autonomous regions’ constitutional and legal right to be consulted before legislation is passed.
The Court did not recognise the petitioner’s legitimacy to base his request on the violation of the dignity of the human person and the inviolability of human life, saying that this dimension of the question did not entail any “breach of the autonomous regions’ rights”.
With regard to the part of the petition in relation to which the Court did recognise its author’s legitimacy, the petitioner argued that the normative measure he was challenging obliged medical staff to perform abortions, and that this matter fell within the region’s areas of competence, given that the RAM’s Political/Administrative Statute says that “health” is a matter of regional interest.
The Court considered that the legal regime created by the Law in question is situated on the level of a redefinition of the scope of protection offered by a norm which creates a criminal offence, and that the regime therefore addresses a matter which lies within the exclusive legislative competence of the Assembly of the Republic. The RAM Legislative Assembly retains its generic regulatory competence with regard to everything that does not conflict with the provisions of the Law, and there is thus no breach of regional autonomy. Nor is there any violation of the autonomous regions’ right to be consulted in advance, because the preconditions for the existence of such a breach do not exist, given that the nature and object of the legal rules governing abortion concern the whole country.
The Ruling is accompanied by five dissenting opinions, whose authors justify their positions in great depth. The Ruling itself debates the question which the petitioners raised with regard to whether the Law in question not only breaches the Constitution, but also the Universal Declaration of Human Rights and the European Convention on Human Rights; and it speaks at length about the solutions offered in comparative law.
The following Rulings, which the Court had already handed down in relation to this subject, are also of interest: nos. 25/84, 85/85, 288/98, 578/05, and 617/06.