Abortion was decriminalized in France in 1975, with Valéry Giscard d’Estaing as president. Now, in March 2024, after the support of 80% of the parliamentary arc, France has become the first country in the world to include the right to abortion in its constitution, since the former Yugoslavia also inscribed it in its constitution in 1974. .
In Spain, to address the problem of abortion, beyond the reductionist discussion about whether it is a right or, on the contrary, women who abort should be imprisoned, I would like to make the alternative proposal that I present at the end of this article.
The distorting power of the consciences of the law
The current abortion law so distorts consciences that it has the effect of promoting abortion itself and eliminating the principle of defense of the weakest. In an equivalent way, the German legislation of the 1930s and 1940s completely warped the consciousness of that society so that it accepted the Holocaust.
In most legislation based on Roman law or Anglo-Saxon law (almost all Western ones), the individual is not considered a “subject of law” until he is born. If the legislation considers that the human embryo is not a subject of law until it is born, why legislate about it?
The law forms, shapes or deforms consciences. There are examples of this in the history of humanity. An entire country as cultured as Germany ended up committing a genocide as brutal as the Jewish Holocaust due to the law of the Third Reich. In the 1930s, the law divided the nation into two main categories: The Volksgenossen (comrades of the nation), who belonged to the Volksgemeinschaft (the ideal community, the harmonious society), and the Gemeinschaftsfremde (the non-EU residents), who were considered arbitrarily as not belonging to the historical and cultural body of Germany and therefore had almost no rights. This second category included all people of Jewish and Gypsy “origin” and also those who had “asocial” behavior, especially all people with any physical or mental disability, who were considered inferior.
That law narcotized the consciences of Germans in the 1930s and 1940s. During the Holocaust, German society simply complied with the law.
The denaturalizing power of the law can also be seen today with women in radical Islamist legislation, where women are an inferior being and men can use them as they please, even stoning them when they are not faithful. In these societies, many women even accept that this is the case.
Something similar happens with abortion. In accordance with art. 29 and 30 of the Civil Code, the unborn child is not a legal subject, it is not a person. It is like this since Roman Law. This is the great problem, the great deformer of consciences: the legal aberration of defining an individual, a person, as a “non-legal entity”, as a “non-subject of law”.
Since jurists have done nothing about it for decades, the result is more terrible than the laws of the Third Reich: in France the right to kill has been included in the constitution, when the laws of the Third Reich at least considered the Jews, gypsies, etc., as people, although of a lower class, with fewer rights.
Defining the unborn child as a non-person, without rights, but with certain protectable rights, is for ordinary mortals a cabal of specialist jurists, an incomprehensible jargon, light years away from the nature of things and the deep feeling and understanding of humans citizens.
The result of this very confusing definition has been an extraordinary deformation of conscience, so that the majority of citizens today consider that abortion is a “right” and that we should not talk about “decriminalization” of abortion, but rather about the right to the woman on her body.
That the unborn child is defined legally, as “not a person”, as “not a subject of law”, but only as an object of law, protectable, yes, but only as an “object”, completely deforms consciences. People do not understand how a “thing”, an “object” (not a “subject”), no matter how protectable it may be, can have rights such as the right to life. If it has no rights and it is an object that is part of my body, why do I commit a crime by “removing it”?
Hence, the majority of jurists, parliamentarians and of course a large part of citizens today think that abortion is a “right”, not a decriminalizable crime. For the warped conscience of a large part of the population (the majority in France), decriminalizing abortion is as absurd as decriminalizing the practice of cosmetic surgery, by which unwanted parts of the body are removed. Said parts of the body can also be the subject of law, but they are not the subject of law.
Either the regulator defines the unborn child as a person, as a full subject of law, or the abortion law will continue to act as a great deformer of consciences, as the great promoter of abortions, and it will never again be possible to talk about “decriminalizing” abortion in certain assessed cases, but the belief in the right to abortion will be consolidated. The right to kill.
The position of jurists: “Not so fast, not everything is so easy”
In a State of Law it is necessary to know exactly the moment in which “legal personality” begins and this need makes it difficult to recognize the legal personality of the newborn. The constitutions of some countries recognize that the unborn child is a person from the moment of conception, thus avoiding further discussions.
If we attributed legal personality to the fetus from its conception, if we defined it as a person, it would not only have multiple “technical-legal” effects, but it would help extraordinarily to shape people’s conscience. Everyone would once again accept by rule of law that abortion is a crime, not a right, although in certain cases it could be decriminalized.
However, in almost all countries in which the individual is not considered a subject of law until he is born, this legislation and constitutional doctrine are so entrenched that it will be extremely difficult to change the law and their constitutions. In France, the deformation of conscience has reached the point of enshrining the right to abortion in the constitution itself, something that has been voted for by the overwhelming majority of right-wing and left-wing parties.
The different branches of Law handle legal categories not always identically. In the past, voluntary abortion was always punishable, regardless of whether the legal personality of the unborn child was acquired at birth (as it was also defined then). Homicide was not punished for killing a legal person, but for killing “another”, nor was abortion punishable or no longer punishable because the fetus had or did not have legal personality. Even if the unborn had had legal personality, killing him or her would never have been homicide, but rather an abortion. And although the child does not have legal personality until 24 hours have passed since birth (as was regulated before and is now), killing him or her was (and is now) homicide. In summary, jurists consider that “criminal treatment” does not strictly depend on legal personality.
Furthermore, the recognition of legal personality to the “nasciturus” presents, as has been said, a powerful difficulty: The need for the Law to know with complete accuracy the moment of beginning and end of legal personality. The beginning, obviously, is difficult to determine in a pregnancy (at what minute did conception occur?). The end is also the same: if there is a spontaneous abortion, sometimes the dead fetus continues for hours or days in the mother’s womb.
Why is it so important to know when legal personality begins and ends? Because there is a bundle of rights and obligations and a set of legal relationships that depend on it. Some examples that are a bit crude, but may be useful: If a tile falls from a house and kills a pedestrian, it is very important to know who was the owner of the house at the time of the accident (for civil compensation purposes). A “nasciturus” with legal personality could be the owner of a large estate. If he dies in the womb, the date of death would be essential. Let’s imagine that his father also dies: it is key to know who died first. If the father died before, the “nasciturus” inherits from him and, when he dies, his mother inherits everything from the “nasciturus”, including the inheritance of her father. On the other hand, if the “nasciturus” died before, his heirs are equally his parents: when his father dies shortly after, other people inherit him (for example, the grandparents of the “nasciturus”), to whom the inheritance of the “nasciturus” would go. “nasciturus”. In the first case, the mother inherits everything from the “nasciturus”, including what she received from her father. In the second case, the mother inherits only half of the estate of the unborn child.
Legal personality is also held by groups of people (associations, such as companies) and groups of assets (foundations). In short, the mere fact of attributing legal personality to the fetus would not necessarily have a clear direct effect on the laws and, therefore, on the formation of the conscience of public opinion.
An alternative proposal
Although criminal and legal treatment does not strictly depend on the legal personality of the fetus, people’s consciences are and will continue to be extraordinarily influenced by laws, even those that do not agree with the intimate nature of things. If this were not the case, if laws did not influence consciences, most people would find the current law on the “right” to abortion unbearable. And much more unbearable for the French to enshrine that right in their constitution.
Since a profound modification of the constitution and of our legal framework in general to consider the unborn as a legal person does not seem possible, and since even granting that condition, it is not clear what the effect would be on the application of the law and, therefore, on the conscience of the people, my proposal is to promote (or at least study in depth) not a modification of the abortion law, but simply its elimination, its repeal. Let there be no law regarding abortion.
It would be an attempt to repeal organic law 2/2010, of March 3, although this also requires modifying article 145 of the Penal Code, which punishes abortion “outside the cases permitted by law.” What would these be? Would all abortion become a crime? Without a doubt, this article of the Penal Code should also be changed.
The abolition of the abortion law would decriminalize any abortion, no abortion would be a crime, but no one could say when they practiced it that they were acting in accordance with the law. He would not act according to “law”.
Furthermore, this would allow work to be done on the restriction of public financing for abortion, enshrined in Organic Law 2/2010. The objective would be for abortion not to be part of the portfolio of common services of the National Health System, but for it to be financed by the Autonomous Communities that want.
Abortions would remain in the realm of each person’s moral conscience, in the realm of the private and personal. Of course, the Autonomous Communities that withdraw public financing from abortion should increase public aid for mothers with difficulties, and above all develop a much more agile adoption system, in which adopting parents would be financed with the same amount as The mother without resources who does not love her son would have been financed.
Maintaining the current legislation in which the fetus is not considered a person and, therefore, for the common citizenry, killing it is not something that can be decriminalized, but rather it is a “right”, is a legislative aberration that is much more distorting than the consciences that the laws that led to the justification of the Nazi holocaust by a cultured society.
German society was guilty of the Holocaust, but the legislator was the main one. The citizens simply followed the law. All of this is wonderfully reflected in the film The Reader, winner of the 2009 Oscar for Best Actress (Kate Winslet). In the end, as the protagonist says, “It doesn’t matter what I think. It doesn’t matter what I feel. The dead, are still dead.”
