When the aim is to enshrine as law what has until now been the subject of legal and moral debate, the question is not only what is being reformed, but how and why. The government’s draft bill to explicitly include abortion in the Constitution, by amending Article 43 rather than Article 15—which enshrines the right to life—raises profound questions about the legal and political foundations of this initiative. Because behind all biolegislation lies a biopolitics: a particular conception of the person, their rights, and the role of the State in protecting human life.
The Government of Spain has approved a draft constitutional reform of article 43 of the Spanish Constitution (hereinafter, CE), whose objective is none other than to explicitly grant abortion the status of a right recognized by it.
Article 43 of the Spanish Constitution, concerning the right to health protection, has three sections. The intention is to add a fourth, with the following wording:
“The right of women to voluntary termination of pregnancy is recognized. The exercise of this right shall, in any case, be guaranteed by the public authorities, ensuring its provision under conditions of effective equality, as well as the protection of women’s fundamental rights.”
The Government intends to bring this initiative to the Cortes for a vote on the 26th of this month of February.
The Council of State
Within the legislative procedure, a mandatory step prior to submitting the bill to the Cortes for a vote is to go to the Council of State, which, according to Article 107 CE, “is the supreme consultative body of the Government. An organic law will regulate its composition and competence.”
In compliance with the constitutional mandate, Organic Law 3/1980, of April 22, of the Council of State, was approved, among whose powers, according to its article 2.2, is that of issuing “opinions on all matters submitted to its consultation by the Government or its members.”
Furthermore, the second paragraph adds: “Consultation with the Council will be mandatory when so established in this or other laws, and optional in other cases. The opinions of the Council will not be binding, unless otherwise provided by law.”
Article 21.1 mandates consultation, among other matters, when dealing with “Draft Constitutional Reform Bills.” Which, as we see, is the case here.
Well, the Council of State issued two opinions, one prepared by Miguel Herrero Rodríguez de Miñón, and the other by María Luisa Carcedo.
The first one was rejected by the Standing Committee of the Council of State and, therefore, the second one was issued in its place.
While there are differences between them, there are two points of agreement: surprisingly, both agree that abortion is a right; but they criticize the attempt to reform Article 43 of the Spanish Constitution, arguing that its proper legal placement would be the reform of Article 15.
It makes sense: a reform of Article 43 of the Spanish Constitution in the way the Government intends goes against Article 15, which establishes that “Everyone has the right to life and to physical and moral integrity, (…)”. And, within that “everyone”, the unborn child is also included.
The channels of constitutional reform
Indeed, abortion directly affects the right to life, which, as we know, is the right at stake. That is why, although we do not agree with granting abortion the status of a fundamental right, the logical course of action, as we have stated and as the opinion also states, should have been to reform Article 15 of the Spanish Constitution. However, the current approach is to reform Article 43 of the Spanish Constitution.
Therefore, the question immediately arises, as it is pertinent: Why is Article 43 EC chosen and not Article 15 EC?
The answer to that question has to do with the channels for constitutional reform. We will try to explain it.
If the reform of Article 15 CE were initiated, since it falls under Section 1 of Chapter II of Title I (“On fundamental rights and public freedoms”), the reform procedure would follow the course regulated by Article 168 CE:
1. When a total revision of the Constitution is proposed , or a partial revision affecting the Preliminary Title, Chapter Two, Section One of Title I, or Title II, the principle will be approved by a two-thirds majority of each Chamber, and the Cortes will be immediately dissolved.
2. The elected Chambers must ratify the decision and proceed to study the new constitutional text , which must be approved by a two-thirds majority of both Chambers.
3. Once the reform has been approved by the Cortes Generales, it will be submitted to a referendum for ratification.”
So this would imply:
- Reach a quorum of 2/3 in each Chamber.
- Dissolve the Cortes.
- That the newly elected Chambers ratify the decision, study the new wording, and approve it by a 2/3 majority.
- If approved, the reform must be submitted to a referendum for ratification.
However, if the reform affects Article 43 CE, the procedural channel would be that ordered by Article 167, according to which:
- Constitutional reform proposals must be approved by a three-fifths majority in each chamber. If no agreement is reached between the two chambers, an attempt will be made to reach one through the creation of a joint committee composed of representatives from both the Chamber of Deputies and the Senate, which will present a text to be voted on by both the Congress and the Senate.
- If approval is not obtained through the procedure in the previous section, and provided that the text has obtained the favorable vote of the absolute majority of the Senate, the Congress, by a two-thirds majority, may approve the reform.
- Once the reform has been approved by the Cortes Generales, it will be submitted to a referendum for ratification when requested, within fifteen days of its approval, by one-tenth of the members of either of the Chambers.”
As can be seen, in this reform procedure, if the approval by the 3/5 majority required by section 1 is not achieved, it would go to approval by a 2/3 majority.
The fundamental distinction between the two reform processes, as far as this is concerned, lies in the fact that, in the first case, the majority is 2/3 and requires, among other consequences, the dissolution of the Cortes; whereas, in the second (which, if it were to reach the end, would also imply approval by a 2/3 majority), the aforementioned dissolution would not take place.
But, before reaching conclusions, it is worth asking another question: Why is Article 43 CE, the right to health protection, placed in the reform process regulated by Article 167, which is an ordinary process, and not in Article 168 CE, which is more rigid?
The legal basis for this distinction is that, as we have said, Article 15 is located in Section 1 of Chapter II of Title I CE: “On fundamental rights and public freedoms”; while Article 43 is found in Chapter III of Title I CE: “On the guiding principles of social and economic policy”.
Note, then, that in the first case we are talking about fundamental rights; while in the second, we are talking about principles.
The limited length of this document makes it difficult to convey here the complex discussion on the legal nature of these principles, because, if we do so, we would be simplifying what, as we say, is really complex.
Just to clarify briefly that the fundamental distinction stems from Article 53.3 CE and, as Goig Martínez (Coord., 2006, p. 574) says, in accordance with said article, “these guiding principles will inform positive legislation, therefore, they oblige the legislator (STC 172/1989, of October 19), judicial practice and the actions of public authorities, but “they may only be invoked before the ordinary jurisdiction in accordance with the provisions of the laws that develop them” (…).
Conclusions
The Government, through a draft bill, intends for the Cortes to approve by vote a reform of the CE, a reform that consists of the CE explicitly recognizing abortion as a right.
But in the constitutional reform he proposes, he requests that it be done from article 43 CE: right to health protection.
Therefore, it does not request the reform of Article 15 CE, which enshrines the right to life.
Within the legislative procedure, it is mandatory, before reaching the Cortes, for an opinion issued by the Council of State, which, in accordance with article 107 CE, is the supreme consultative body of the Government.
In this opinion, the Government is criticized for attempting to reform Article 43 CE, when, if the intention is to include abortion as a right in our Constitution, since this reform affects the right to life, the proper legal course of action would be the aforementioned reform of Article 15 CE, not the former, which, in the end, would go against Article 15 CE (which is not to be reformed).
The question that immediately follows is why the Government chooses to reform Article 43 CE and not Article 15 CE.
The answer lies in Articles 167 and 168 of the Spanish Constitution, which regulate the channels for constitutional reform.
The reform of Article 15 CE requires resorting to the second of these articles, while the reform of Article 43 CE must be carried out in accordance with the first of them.
The fundamental difference, as far as this is concerned, lies in the fact that, if the reform of article 15 CE is intended, that reform, according to article 168 CE, necessarily entails the immediate dissolution of the Cortes (with which, among other consequences, we would go to general elections); a dissolution that is not established in article 167 CE (which would be the case of a reform of article 43 CE).
We therefore agree with Ollero (2006, p. 21) when he correctly states that “bioethics and biolaw are thus giving way to an imperative biopolitics , to which they will have to submit.”
Indeed, behind every biolegislation there is always a biopolitics, which leads us to question the true (and hidden) reasons for the aforementioned reform.
David Guillem-Tatay . Institute of Life Sciences, UCV. Bioethics Observatory
***
Literature
Agreement acknowledging the draft bill to amend Article 43 of the Spanish Constitution. Retrieved from:
Spanish Constitution. (1994). Tecnos Publishing House: Madrid.
Goig Martínez, JM (Coord.). (2006). The constitutional system of rights and freedoms according to the Jurisprudence of the Constitutional Court . Editorial Universitas Internacional: Madrid.
Organic Law 3/1980, of April 22, of the Council of State. Retrieved from:
Ollero, A. (2006). Bioethics. Between life and death . Aranzadi Publishing House: Cizur Menor (Navarra).
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