The US Supreme Court decided this Friday, by a vote of six to three, to eliminate the right to abortion, a historic ruling by the conservative majority court that annuls five decades of constitutional protections. The religious right had never accepted the 1973 “Roe v. Wade” ruling guaranteeing the right, mainly because they argue that there is no clear codification in the Constitution (only case law). In practice, this derogation supposes the freedom of the States to decide on the reproductive rights of 166 million women.
For this reason, some countries are already preparing to include and criminalize abortion in their respective constitutions. A way to be protected against cases like the one that the US is now experiencing.
france is ahead. France has been one of the countries that has most condemned the decision of the Supreme Court. Emmanuel Macron’s party has even introduced a bill to enshrine the right to abortion in the Constitution. All this in the midst of the heyday of the extreme right, fiercely opposed to abortion, in the country.
The left, happy, has welcomed the government’s “change of direction” and invites like-minded parties to present a joint text. Together, the leftist alliance and Macron’s coalition would obtain a large majority in favor of such a constitutional change.
Could? Yes. The legal term to interrupt a pregnancy in France was already extended from 12 to 14 weeks in the last legislature. In 2018 and 2019, the opposition unsuccessfully tried to amend the constitution to include abortion rights. But the constitution requires the National Assembly and the Senate to adopt the same text, then a three-fifths majority of Congress. The other option is a referendum.
What has happened in the US? For 49 years, abortion has been legal for the process launched by the Texan Rhonda McCorney (under the pseudonym ‘Jane Roe’, with which her anonymity was preserved) against her district attorney, Henry Wade, in 1969 to claim her right to have an abortion in that State. After four years of legal battle, the case reached the Supreme Court, which declared that abortion conforms to the Constitution. But the judges’ decision never placated public opinion. In fact, the US Congress has let 50 years go by without promoting a single law that consolidates the sentence.
The motives? Congressmen know that abortion is a muddy swamp in which political death is guaranteed. But Judge Samuel Alito argued in his draft that Roe is a flawed law because the right to abortion it is not explicit in the constitution. Also, now the court has a conservative majority unprecedented in decades and that it has been key to advancing various issues on the conservative agenda that until then had been limited by the balance of powers on the Court.
The situation in Spain. It’s quite different, but it won’t be forever. Here the Council of Ministers approved in May a reform to the organic law in force since February 2010, which further expands sexual and reproductive rights. The new law establishes free abortion as a right up to the 14th week of pregnancy and up to the 22nd in case of risk to the life of the pregnant woman. Also when there are problems with the fetus.
In addition, it clarifies that young women between 16 and 17 years old and women with disabilities can abort without the consent of their parents, a point that had been regressed since 2015, under the mandate of Mariano Rajoy. And the three days of reflection or receiving information about motherhood are not even mandatory.
The role of the Constitutional Court. Despite this reform, the matter is still under debate here. It should be noted that In Spain, the Constitutional Court has pending since 2010 the ruling on the appeal of the PP against the current abortion law approved that same year by the socialist government of José Luis Rodríguez Zapatero. The lack of consensus among the magistrates has been the cause of the delay. Although some drafts have been written, the issue has never been fully settled.
Now the majority of the Constitutional is conservative, by six votes to five. And, given the panorama, it seems difficult to reach the agreement that is sought. In addition, the magistrates are aware of what a return to the regulation of the right to abortion could mean for society. In Spain, the Constitutional Court is the playing field where the final result is decided. And not taking this into account could lead us to the same situation as in the US. There, too, it was unthinkable that the Supreme Court would dare to put an end to the right to abortion. And look what has happened.
Image: Laurie Skrivan (GTRES).