Abstract
In as far as the regulation of abortion deals with issues like how and to what extent can women’s capacity to gestate and give birth be controlled, and by whom, any discourse on abortion necessarily reflects a construction of women’s citizenship, hence of gender. The question is, which is the ruling construction? Behind non-legal discourses that focus on human life and public power’s duty to protect it, there lies the modern construction of gender that articulates women’s passive citizenship within the state. This is also true of confrontational discourses that construct women and the foetus as potential adversaries. Both discourses are traditional in continental Europe. Yet, they are being superseded by an understanding of abortion from the perspective of women’s active citizenship. Spanish Organic Act 2/2010 stands as part of this trend. Not surprisingly, governmental attempts to reinstate women’s passive citizenship in this matter have met stark resistance.
Introduction: Abortion and Gender
The following pages attempt to draw a picture of legal discourses on abortion from a gender perspective. They attempt to tease out the gender features of these discourses, on the assumption that they rely on a specific construction of women’s citizenship within a given sociolegal community, that is, on a specific construction of gender. This is so to the extent that the regulation of abortion regulates women’s capacity to gestate and give birth, offering a solution that can range between turning this capacity into a legal obligation to carry pregnancy to term and granting women direct control over it. The focus will be on the gender features of the discourses on abortion developed within the Spanish legal order since Spain’s transition to democracy and on their evolution to date. To this end, I will first look into traditional abortion discourses in continental Europe, as framed by the German Federal Constitutional Court and as received in Spain. These, as we shall see, are made by a combination of non-legal and confrontational arguments, both of which, I will argue, are profoundly gendered (see section ‘Traditional Abortion Discourses in Continental Europe: The Gender of Metaphysics and Conflict’). I will then look into the evolution towards more self-referential, relational and gender-deconstructive legal discourses on abortion in Europe (see section ‘A New European Approach: The Socio-Relational Dimension of Abortion’), into how these influenced the passing of Spain’s Organic Act 2/2010, 3 March, on sexual and reproductive health and the voluntary interruption of pregnancy and into current discussions on abortion legislation in Spain (see section ‘The Socio-Relational Dimension of Abortion in Spanish Organic Act 2/2010’). I will conclude with some reflections on how abortion discourses could be shaped in line with the deconstruction of gender (see section ‘Coming Full Circle: Gender and Discourses on Abortion’). Before undertaking this analysis, some reflections on the connection between the regulation of abortion and gender are in order.
The connection between abortion and gender is most apparent in legal discourses that approach abortion in self-referential terms, in line with modern post-metaphysical legal thinking and its self-referential understanding of human beings as legal subjects (Habermas, 2003: 23–29). When regarded in this light, abortion is usually approached from the position of women as democratic citizens and right holders. Unborn human life is thought to deserve protection to the extent that the sociolegal community has a ‘compelling interest’ in it and this interest is coherent with its constitutional tenets, notably with women’s democratic citizenship. Such is the approach adopted by the United States Supreme Court in Roe v. Wade (410 U.S. 113, 22 January 1973). 1
The gender dimension of discourses on abortion is often eclipsed, however, by discourses that focus on our self-understanding as human beings. It is eclipsed, more specifically, by metaphysical or otherwise non-legal discourses that focus on the beginning of human life and the protection it deserves. Non-legal arguments on abortion entail two problems. First, they place abortion discourses beyond the law’s grasp, couching it in terms that appear to be non-negotiable for the law and that sit uncomfortably with modern legal arguments. 2 This explains why decades of abortion debates have not provided reliable parameters for the legal regulation of new challenges in bioethics, such as euthanasia, eugenics or surrogate motherhood. It explains why ‘all attempts to describe early human life in terms that are neutral with respect to world-views, that is, not prejudging, and thus acceptable for all citizens of a secular society, have failed’ (Habermas, 2003: 31; Tribe, 1990). Indeed, arguments that appeal to metaphysical, theological or scientific grounds to sustain the state’s legal obligation to protect (innocent 3 ) human life, in particular arguments that defend that all (innocent) human life deserves equal protection, are uncompromising. They differ on the point at which human life begins. At one end are those who argue that human life begins at birth (Singer, 1993; Tooley, 2009); at the other are those who argue that it begins with conception – or with nidation (Finnis, 1991; Wolf-Devine and Devine, 2009). Some of the latter argue that abortion amounts to murder, based on all human life’s equal worth, while others concede that foetuses deserve less protection than (born) legal persons, thus allowing for some analytical flexibility to ponder the relative weight of the protection due to the foetus and the pregnant woman’s rights. 4 This is the traditional approach in continental Europe.
A second problem with non-legal arguments is that almost all of them rest uncompromisingly on the modern ‘sex-gender system’ (Rubin, 1975: 159). The exceptions are arguments sustaining that human life begins at birth, hence that the state has no stake in unborn life, which remains in every pregnant woman’s domain. Although they rest on metaphysical grounds, not on a construction of women’s democratic citizenship, these arguments are in tune with women’s position as democratic citizens and right holders. Not so other non-legal arguments, which rather take for granted the dichotomous gendered citizenship model that sustains modern states. In modern states, (active) citizenship was defined by the male ideals of independence, rationality, individuality and participation in the public spheres of politics and work and was regarded as the normative model (Marshall, 1963). Every expression of dependency, irrationality, emotions, relations or care was displaced towards female (passive) citizenship by means of a (hetero)sexual fraternal contract (Landes, 1988: 158; Pateman, 1988; Wittig, 1992). Regarded as the anomaly, passive citizenship infantilized and subjected women to the rule of men and/or a male state through the ‘care/control paradigm’ (Joseph, 2003: 159), hence to the heteronomy of norms designed by and for others. This modern sex-gender system is at the core of non-negotiable non-legal discourses on abortion that rely on the worth of unborn life and women’s natural destiny to care for it, which articulate the state’s duty to protect the former and enforce the latter even against women’s (unnatural, irresponsible and misguided) resistance. This duty allows, however, for exceptions, which leave room for women’s legal access to abortion, constructed as a result of a balancing act between their rights and the protection foetuses deserve.
These discourses are framed, moreover, in confrontational terms. They construct the foetus and the pregnant woman as isolated, self-sufficient beings whose relationship poses potential dangers to the individuality of both, and then see rights as instruments to solve conflicts between the two. As Gilligan (1982) spelled out, such confrontational approaches, construed as rational zero-sum games within a value system that has self-sufficiency at its centre and regards relations as potential threats, are typically male. They rest, that is, on the ideals of independence, rationality and individuality that define modern male citizenship. They are also profoundly counterfactual. Real people are not isolated and self-sufficient but entrenched in complex relational networks (Eisler, 2002 : 1–29; Minow, 1990), all of which – voluntary and involuntary, structural and accessory, inevitable and fortuitous – contribute to shaping our identity in diverse and often contradictory ways. Rather than being in opposition to their relationships, individuals and relationships reciprocally define each other. In this light, individual identities become dynamic, the result of constant creative processes of (re)invention (Nedelsky, 2012: 158–159); they become, in a performative logic (Butler, 1990), the combination of their relational roles, ‘the personality they present themselves as’ (Luhmann, 1965: 69–70).
This is not to deny individuals’ autonomy. It is to acknowledge that autonomy is shaped, not in isolation and against our relational networks, but from within and through them, although also against specific relationships. Indeed, every relationship offers a different perspective on ourselves, thus providing a critical standpoint to assess others and their roles in shaping our self-knowledge. Thus regarded, autonomy becomes our capacity to adopt ‘reflexive role-distance’ with respect to any relationship (Benhabib, 1992: 73), to contemplate ourselves critically from the perspective of one/some of our relationships, to turn our critical observations into action and to alternate our standpoint, so that any relationship can be the object of scrutiny from the perspective of any other. This makes autonomy relational and dynamic (Meyers, 2004; Nedelsky, 2012), the result of an on-going dialogue among the relationships to which we are part.
Women’s real-life abortion decisions are profoundly relational. They are not based on calculations as to whose entitlements are stronger, theirs or those of the foetus. They rather turn around the pregnant woman’s relational context, around the question of whether or not a (new) mother–child relationship could be integrated in it and at what cost to existing relationships (Gilligan, 1982: 70–105). Confrontational legal approaches to abortion are thus as entrenched in a male value system as they are counterfactual in their design. In the following pages, I will delve into the gender features of both non-legal and confrontational approaches to abortion in the continental European tradition.
Traditional Abortion Discourses in Continental Europe: The Gender of Metaphysics and Conflict
By contrast to the United States’ tradition, where abortion is regarded as a constitutional right (see Sanger in this issue), although subject to increasing qualifications and restrictions, 5 the continental European legal tradition regards abortion as a crime. This is based on the belief that unborn human life is under the natural protection of the pregnant woman and, failing this, the state. Decriminalizing abortion under certain circumstances is here an exception, justified by the existence of a conflict between the protection due to unborn human life and the pregnant woman’s entitlements. This discourse’s basic tenets inform the first abortion decision of the German Federal Constitutional Court in 1975, a decision that influenced legal discourses on abortion in Europe and that set the ground for the Spanish legislation and Constitutional Court’s position on the matter.
A Brief Look into the German Precedent
In 1975, the German Federal Constitutional Court decided on the constitutionality of a Criminal Code amendment passed in 1974. The amendment decriminalized abortions performed during the first 12 gestation weeks, subject to the requirement that the pregnant woman went through medical and social counselling aimed at explaining the means and services the welfare state placed at her disposal. The amendment also decriminalized abortion in cases of malformations in the foetus during the first 22 gestation weeks (eugenic abortion) and at any stage during pregnancy if the pregnant woman’s life or health was at risk (therapeutic abortion).
In order to face this amendment, the German Court developed three interlocking lines of discourse (BVerfGE 39, 1, 25 February 1975). The first one centred on non-legal considerations concerning the importance of human existence and worth as offered by biology, anthropology, medicine, psychology, sociology, politics, morality and theology (BVerfGE 39, 1; para C). From this, the court concluded that the constitutional right to life (‘All – Jeder – have a right to life and physical integrity’, Article 2.2 of the Basic Law (BL)) embraces unborn life, which it declared to be of equal human worth and dignity (Article 1.1 BL) as born life (para C.I.2). Nature, it continued, has placed the protection of the unborn in the hands of the woman who gestates it (‘the mother’ 6 – para C.II.2). Where she refuses to fulfil her natural duties, the duty to protect falls onto the state. This connects with the second line of argument, which purported to solve conflicts between the state’s commitment to protecting unborn life and women’s rights. Exceptionally, said the court, the former must give way to the latter, notably when the woman’s life or health is in danger. It can also exceptionally give way when pregnancy and motherhood impose a burden on the free development of her personality (Article 2.1 BL) that goes beyond nature’s requirements. This allows for eugenic abortion if practiced during the first 22 weeks and could also allow for ethical or social abortion, in cases of rape and exceptional social difficulties, respectively, within a reasonable time frame –the court pointed to 12 weeks (para C.III.3). Now, a third interlocking line of argument, centred on gendered preconceptions on women’s nature, destiny and duties, comes to the surface. Beyond those exceptions, the court said, the state must compel pregnant women to forsake ‘unlimited pleasure’ (para C.III.3) and assume ‘the natural sacrifices and duties of motherhood’ (para D.III.2). It can decide to do so by criminalizing any deviation from these duties or by preventative means aimed at re-establishing women’s natural inclination to care for the life they gestate. Crucial is that the law makes clear its commitment to protecting human life and to establishing the difference between moral ‘right’ and ‘wrong’, that abortion remains a (tolerated) ‘wrong’ and is not approved of as a ‘right’ (para D.II.2). The regulation of a time-frame decriminalization of abortion was not deemed to satisfy these requirements.
Gender thus colluded with a non-legal discourse to frame a constitutional discourse on abortion centred on the foetus, not the pregnant woman. The decision was couched, furthermore, in a male-style confrontational logic that constructs pregnant women and unborn life as potential enemies in a zero-sum game, thus further removing the legal discourse on abortion from women’s reality. It is with this decision in mind that Spain passed its first democratic act on abortion.
Spanish Legal Framework Prior to 2010
Until 1985, abortion was prosecuted as a crime in Spain except where pregnancy and/or birth endangered the pregnant woman’s life. Organic Act 9/1985, 5 July, amended the Criminal Code to introduce three exceptions to the criminalization of abortion (section 417bis): an ethical exception (during the first 12 gestation weeks, provided rape had been reported to the police), a eugenic exception (during the first 22 gestation weeks, provided serious mental or physical disabilities in the foetus were previously certified by a medical report) and a therapeutic exception (any time during pregnancy). Before section 417bis was enacted, 54 members of parliament brought its draft bill before the constitutional court, 7 on the grounds that it violated a series of constitutional provisions, notably the right to life (Article 15 of the Spanish Constitution (SC) ), the state’s duty to protect children (Article 39.2 SC) and its duty to provide care for the physically and mentally disabled (Article 49 SC).
The Constitutional Court’s Decision STC 53/1985, 11 April, faced these challenges. It started by analysing the scope of the right to life as constitutionally protected (Article 15). According to Article 15, ‘All enjoy the right to life’. Unlike other constitutional provisions, Article 15 does not refer to the right to life’s holders as ‘all persons’. Doing so would have excluded the unborn, since a ‘person’ is a born human being (section 30 of the Spanish Civil Code). Article 15’s wording thus suggests, and its drafting history confirms, a conscious effort not to leave unborn life constitutionally unprotected. Yet, despite Article 15’s wording and history, the Spanish Constitutional (SC) Court stated that only ‘persons’ can be the holders of rights, including the right to life (FJ 6). 8
This does not leave unborn human life completely outside the scope of Article 15. The court stated that constitutional rights have a normative dimension that goes beyond individual entitlements and that imposes both negative and positive obligations on the state: the obligation both to refrain from interfering with their effective enjoyment and to provide the means for it. In the case of Article 15, this imposes on the state the duty to protect human life in all its developmental stages, including the unborn. This is, it said, ‘not only a condition for life outside the maternal protection, but also a moment in the development of (human) life itself’ (FJ 5). 9 The state must both refrain ‘from interrupting or hindering the natural gestation process’ and establish ‘a legal system for the defence of life that presupposes an effective protection thereof’ (FJ 7). Moreover, said the court, the right to life ‘constitutes the essential and principal fundamental right, the real and genuine basis without which the remaining rights would have no possible existence’ (FJ 3) and is inextricably linked to human dignity (Article 10 SC) as the basis of all rights. As a result, the state may (at times the court suggests that it must) go to further lengths to protect human life than to protect other rights.
The Spanish Constitutional (SC) Court thus contemplated abortion from the perspective of the foetus and the state’s duty to persecute attacks against human life. It regarded the three cases of decriminalization of abortion as exceptions to this duty. These derived from pregnant women’s constitutional entitlements: their physical and moral integrity (Article 15), freedom of ideas and beliefs (Article 16) and right to privacy (Article 18), at the basis of which lies dignity and free development of their personality (Article 10; FJ 8). Never did the court consider that abortion could be a woman’s constitutional right or whether there could be constitutional basis for a statutory right to abort. The question was rather whether women’s constitutional rights allow for the exceptional decriminalization of abortion in the three cases under examination.
The court, moreover, did not openly explore whether the constitution demands that under certain circumstances abortion go unpunished. It only openly enquired whether this outcome is constitutionally permitted in the three exceptions under consideration – the court, however, was somewhat ambiguous on this point and at times appeared to regard the exceptions as constitutional demands rather than mere possibilities (see especially FJ 11). In any case, the explicit question the court faced was not whether the state may waive all protection of the unborn in these instances, but whether it may ‘protect fundamental rights using techniques that exclude criminal punishment’ (FJ 9). There is again some ambiguity in the court’s reasoning; as it was not asked to examine what other techniques might serve the protection of the unborn, the court at times assumed that without criminal law the foetus remained unprotected. Be this as it may, the court said that there are singular or exceptional cases where ‘(r)esorting to the maximum constriction – criminal penalty – in order to impose in these exceptional cases the conduct that is required in normal cases would be inappropriate’ (FJ 9).
Therapeutic abortion was declared constitutional based on the pregnant woman’s right to life and health, although more stringent medical conditions were required in order to protect the life and physical integrity of the woman and to ensure that ‘failure to protect (sic) the foetus does not occur outside the situations established’ (FJ 12). So was ethical abortion, based on pregnant women’s personal dignity, physical and moral integrity and privacy, in terms that pointed at ethical abortion as a constitutional demand rather than a mere possibility (FJ 11b). The court also declared eugenic abortion constitutional, provided, again, more stringent medical conditions were introduced.
The Draft Bill of Article 417bis of the Criminal Code was amended to meet the requirements of Decision 53/1985 (see italics). In its final version, it required that abortion be carried out by a Doctor or under a Doctor’s direction in an authorized public or private health centre with the woman’s explicit consent, except in emergency cases; that a medical report written by a specialist in the area, who must be different from the Doctor who will carry out the abortion, certifies that therapeutic abortion is necessary in order to avoid seriously endangering the pregnant woman’s life or health, except in emergency cases; and that two different medical specialists from authorized public or private health centres, who must be different from the Doctor who will practice the abortion or under whose direction the abortion will be carried out, certify that the foetus is likely to be born with serious mental or physical disabilities.
In the cases of both therapeutic and ethical abortion, the court couched its analysis in the language of conflict. Interestingly, the court abandoned its confrontational approach in the context of eugenic abortion, where it developed a more complex relational discourse, without confronting the life of the foetus to any specific right of pregnant women. Rather than this, the court argued that it would be unreasonable to impose upon families and parents, particularly mothers, a burden that exceeds what is normally required of them, particularly (and this is the interesting part) given ‘the lack of State and social provisions which would contribute significantly to mitigating’ that burden and ‘to removing the insecurity’ it provokes (FJ 11).
This passage could be read as a warning that those who knowingly decide to give birth to a disabled child do so at their own risk and costs. Yet, it could also be read as introducing a preventative approach to abortion, as it indirectly connects eugenic abortion to the deficiencies of the welfare state. Indeed, instead of connecting the notion of ‘unreasonable demands’ with women’s nature and the moral duties derived thereof, as the German Constitutional Court had done, it linked it to the insufficiency of state provisions to assist parents, most particularly mothers. The implication could be that the more the state provides support for parents of children with disabilities, the more difficult it becomes to justify eugenic abortion. Yet, this also brings forth the relational dimension of responsibilities emanating from pregnancy and birth as well as the state’s duty to attend to this relational dimension as part of its commitment towards human life. The court thus seems to be opening the door to the possibility of channelling these duties, not through criminal law, but through social provisions that help to shape the relational framework within which abortion is decided. It seems to be opening the door to an approach to abortion that is not punitive but preventative, that is, not transcendental and confrontational but self-referential, which takes women’s active citizenship seriously and that embraces abortion in its socio-relational dimension. This approach soon started to gain ground in continental Europe. Again, the German Constitutional Court played a central role in its articulation.
A New European Approach: The Socio-Relational Dimension of Abortion
On 27 June 1992, reunified Germany passed a new federal act on abortion with a view to harmonizing existing legislation in former West and East Germany. This act introduced a time-frame system that decriminalized abortions practiced during the first 12 gestation weeks, provided the pregnant woman had gone through a counselling process at least 3 days prior to the abortion. 10 The Federal Constitutional Court was called upon to examine the constitutionality of this act. In its second decision on abortion (BVerfGE 88, 203, 28 May 1993), this Court reminded us of the state’s duty to protect human life, of its connection with human dignity, of the foetus as a unique and individual form of human life since conception (para D.I.1), of the state’s duty to protect it, even against the pregnant woman (again ‘the mother’), if necessary, and of how this duty could only exceptionally give way to the pregnant woman’s constitutional rights: life, health, physical integrity, dignity or the free development of her personality (Articles 1 and 2 BL; para D.I.2c.aa).
Yet the court also introduced interesting new ideas. Pregnancy, it said, unites two lives in one (it entails a ‘duality in unity’) in ways that go beyond mutual respect to entail long-term responsibilities beyond pregnancy and birth (para D.I.2c.bb). In the face of this special bond, criminal law should be the last resort to protect the unborn (para D.I.2c.dd). The law may resort instead to preventative measures, notably counselling geared to informing women of how the socio-legal context supports pregnancy, birth and motherhood, and facilitates the conciliation of family life and work 11 (para D.I.3). Without turning legally practiced abortion into a ‘right’, this reasoning allowed the law to tolerate it provided counselling was sufficiently protective of the foetus (para D.I.2c.dd). As it turned out, the court considered the regulation of counselling insufficiently protective, that is, insufficiently geared towards persuading women to carry pregnancy to term. It thus prescribed additional protective measures, such as informing women of the foetus’ right to life; involving social agents, such as the churches, that can persuade women to bring pregnancy to term; pondering whether to involve close relatives and/or partners, depending on their expected support for pregnancy; allowing for a second counselling when the woman seems psychologically fragile; or introducing a reflection period (para D.IV.1–2).
In gender terms, the court’s discourse was ambiguous. On the one hand, it was loaded with moral considerations based on the modern construction of gender, such as women’s nature, maternal duties or the essential wrongness of abortion. On the other, it questioned this construction and pointed towards a relational approach to abortion, regarded as a social problem, which granted women the last word on the matter. This latter line of reasoning is becoming widespread in Europe. In most continental European countries abortion is now legal if practiced during an initial period that ranges between the first 10 and 18 gestation weeks, usually subject to a prior information/counselling process for the pregnant woman. 12 This approach, also endorsed by the European Parliament, 13 has been sustained by other courts in Europe: the Austrian Constitutional Court (Decision of 11 October 1974), the French Constitutional Counsel (Decision 2001-446 DC, 27 June) and the Portuguese Constitutional Court (Agreement 75/2010, 23 February). This latter court’s decision clearly spells out this line of argument.
The Portuguese Constitutional Court decided on the constitutionality of Act 16/2007, 17 April, which decriminalized abortion during the first 10 gestation weeks, provided pregnant women go through counselling at least 3 days before. In line with the continental European tradition, this court took the perspective of the state’s constitutional duties towards the foetus. Yet, in line also with the second German abortion decision, it embraced a relational view of pregnancy, regarded as a ‘duality in unity’, the nature of which evolves. As it does, so do the state’s duties towards the foetus (para 11.4.8), which become more stringent as pregnancy develops (para 11.4.11). Based on this, it was considered constitutional not to resort to criminal law in relation to early term abortion, when the unity between the foetus and the pregnant woman is strongest and prevails over their duality. During that time, the court said, abortion is a personal and existential inner problem for the pregnant woman, who both provokes and suffers it. Threatening her with criminal punishment would then be inefficient (para 11.4.8), as shown by the failure of criminal strategies against abortion. It makes more sense to try to protect the foetus through the pregnant woman rather than against her, to harmonize her interests with the state’s interest in protecting unborn life rather than opposing both (para 11.4.9). The court moved away from the European tradition that regards pregnant women who consider abortion as either selfish and irresponsible or too weak or ignorant to know their own good (para 11.6). It compelled us to regard them as valid interlocutors, as active citizens who face a decision that has long-term life implications and that must be taken ‘from within a network of interlocking, concurring and often irreconcilable responsibilities and obligations’ (para 11.4.10 – my translation). It compelled us to regard the decision to abort, not as a symptom of irresponsibility, but a sign that women take family responsibilities very seriously. A preventative approach, concluded this court, can influence the decision of at least those women who are as yet undecided – in practical terms, it noted, the only women that matter (para 11.4.10).
The Portuguese Constitutional Court thus upheld the constitutionality of act 16/2007. It did so although the counselling process this act designed was not explicitly geared to persuading women to carry their pregnancy to term (para 11.8 y 11.9). The law, said the court, can legitimately trust the persuasive force of an objective counselling process where women are informed of the rights and benefits at their disposal (para 11.4.17), without ideological or moral pressure (para 11.9). The burden of protecting unborn human life lies with the design of a welfare state sufficiently protective of pregnancy, birth and motherhood. The Portuguese Court thus assumed a self-referential, relational approach to abortion that places women’s active citizenship at its centre. Passed about a week before the Spanish Organic Act 2/2010 on abortion, the Portuguese decision anticipated the spirit of this act.
The Socio-Relational Dimension of Abortion in Spanish Organic Act 2/2010
The application of abortion law in Spain after STC 53/1985 created insecurity among women and doctors. Therapeutic abortion, which could be performed at any time during pregnancy also to protect pregnant women’s psychological health, was interpreted in wide and flexible terms. Around 96% of legal abortions were performed under this exception, mostly within the first 12 gestation weeks (around 87% of all legal abortions). 14 Yet, there was no clear ruling on how wide this exception was. Both women and doctors faced criminal prosecution if abortion was practiced outside the legal boundaries and requirements. Doctors could be punished with 1–3 years imprisonment and a prohibition to work as a health professional in a public or private health centre for 1–6 years. Women could be punished with 6 month to 1 year imprisonment or with a fine (section 145 Criminal Code). Criminal prosecutions against doctors and also, although more rarely, against women, did take place, mostly against late-term abortions performed under the mental health exception. Actions were also taken against health centres. According to the Decree 2409/1986, 21 November, health centres that practiced illegal abortions face administrative fines and possibly closure. Many public health centres preferred not to run the risk hence did not provide abortion services. Add to this the lack of statutory regulation of doctors’ constitutional right to conscientious objection (STC 53/1985, FJ 14) and the result was a staggering number of abortions performed in private centres (around 97%) and the growth of abortion as business.
The number of abortions performed in public health centres varied, furthermore, among Spain’s 17 Autonomous Communities. Health in Spain is a decentralized service. Autonomous Communities are thus responsible for authorizing public and private health centres to perform abortions and for making a list of the authorized health centres available to the public. This created important regional disparities, 15 at a time when abortion was not recognized as a right and there was no legal ground to make it available in all the Spanish territory. There are also regional disparities in the availability of public funding for abortion. In principle, legal abortions were subsidized in public health centres (in Madrid and Catalonia only for low-income women). Admittedly, some private health centres operate with public funding, as part of a Network of Hospitals for Public Use (Red Hospitalaria de Utilización Pública (RHUP)). Indeed, most abortions covered by public funding in Spain are carried out in private health centres belonging to the RHUP network. The RHUP works, however, on a regional basis, hence the number of publicly funded abortions varied depending on the autonomous community. 16
Demands increased for a clearer regulation of abortion, one that would regulate doctors’ conscientious objection, that would make abortion equally funded in all the country and would not create areas of uncertainty. Demands also increased for abortion to be regulated as a right. There were also concerns to reduce abortion rates, which continued to rise steadily during the 1990s and 2000s, with a slight decline in 2009 (11.78 per 1000 women in 2008, 11.41 in 2009, as opposed to 6.00 in 1998). This was so despite legal and policy measures aimed at supporting maternity and birth, such as a paid maternity and paternity leave (16 weeks for working mothers, 10 of which can be transferred to or shared with working fathers, and 13 days for working fathers, with extensions in case of multiple or premature births), nursing leave for parents of babies under 9 months, leave to care for children under 8 and other policies supporting conciliation of family life and work, such as the promotion of flexible working hours for parents. Despite such measures, reality continues to make it hard for mothers to build a professional life. 17 Abortion rates reflect this reality.
In September 2009, government reacted by making the day-after pill available without prescription. Then the passage of Organic Act 2/2010, 3 March, changed Spanish abortion legislation. This act adopted a double preventative strategy. Its aim is first and foremost to prevent unwanted pregnancies through sexual education. In the case of pregnancy, it grants a statutory right to abort during the first 14 gestation weeks, provided abortion is preceded by a counselling process, followed by at least 3 days’ reflection period (section 17). Regional health authorities or authorized health centres are required to inform pregnant women who solicit abortion of the medical and legal conditions under which abortion can be performed, but also of their rights and the benefits at their disposal both in the event of an abortion and if pregnancy is carried to term, as well as of the medical, psychological and social implications attached to both options. After the 14th gestation week, abortion remains a crime, subject to a therapeutic exception, where the life or health of the pregnant woman is at risk, and to a eugenic exception, where the foetus has serious malformations. Both exceptions apply until the 22 gestation week, with no time limit where foetal malformations are incompatible with life. These exceptions require two medical reports and, in this latter case, the conformity of a clinical committee, composed by two gynecologists or experts in prenatal diagnosis and by a pediatrician, selected by regional Public Health Authorities for at least 1 year; the pregnant woman can select one member. Every autonomous community must have at least one clinical committee in at least one public health centre (section 16). 18
Organic Act 2/2010 thus grants women a statutory right to abort during the first 14 gestation weeks (section 18). It also regulates doctors’ right to conscientious objection, requiring that women be referred to a different doctor or health centre in time (section 19). During that initial period, the act abandons the confrontation between the foetus and the pregnant woman and the attempt to protect the one against the other’s interests, to embrace instead the deep connection between the two. Its strategy to protect unborn life is to make the state responsible for creating the right socio-economic conditions for motherhood and for making these known to women during counselling. The act thus aims to protect unborn life while embracing women’s autonomy, hence active citizenship. Indeed, the act lays the decision to interrupt pregnancy exclusively upon women, originally from the age of 16, in line with Act 41/2002, 14 November, on patients’ autonomy (section 9). Sixteen- and 17-year olds were originally required to inform a legal guardian (at least one parent), unless this could cause grave conflict or provoke any form of mistreatment within the family the final decision lying with the doctor in charge (Organic Act 2/2010, section 13.4). 19 However, a polemical amendment (still a draft bill at the time of writing) has raised women’s decision age to 18, thus making all underage girls dependent on parental consent for abortion, unless a judge decides otherwise. There is concern that this might trigger a rise of illegal abortions among minors.
There remain further causes for caution. While women must be informed of their rights and benefits in a standardized and confidential manner, through a closed envelope (section 17.2), information on the medical, psychological and social consequences attached to their options must be delivered personally by doctors and adjusted to each woman’s personal circumstances (section 17.4), once again in line with Act 41/2002 (sections 4 and 10). Moreover, this information is not required to be neutral, as it was in the original draft bill, and although it is formally required to be objective (section 17.5), preventing abortion is admittedly its ultimate purpose. Indeed, counselling aims to fulfil the state’s constitutional duty to protect unborn human life within a time-frame system. This arouses concern that counselling can become a channel for non-legal considerations on women’s natural duties as well as for assumptions about women’s incapacity to make their own decisions responsibly without state’s input, hence for women’s passive citizenship and the care/control paradigm. 20 This is the more so the less responsible, the less autonomous and the more vulnerable women appear to be in the public imagination, which could open the door to covert discrimination of women belonging to some social groups. Much depends on how seriously doctors take both women’s active citizenship and the relational dimension of pregnancy and abortion. It also depends on how seriously the state takes its duty to create socio-economic conditions that make abortion a less frequent option – something that cuts on social expenses since 2011 do not appear to promote.
Beyond these concerns, the abortion debate remains open in Spain. The Spanish Constitutional (SC) Court has been asked to examine the conformity of this new time-frame preventative approach with Article 15 SC. A decision on the act is pending. To the extent that the 1985 and 2010 Organic Acts on abortion endorse radically different approaches to abortion – punitive and preventative, respectively, STC 53/1985 would appear to offer little guidance. Nonetheless, the court’s preventative reflections on the social and relational dimension of pregnancy and parenthood and on the state’s responsibilities towards both, developed in the context of eugenic abortion, seem to support the constitutionality of Organic Act 2/2010. So do, as seen, the decisions reached by Constitutional Courts in neighbouring countries. Yet, the Constitutional Court’s current conservative majority and the fact that a conservative Catholic Justice (Justice Ollero) will act as the decision’s spokesman advise us to be cautious. Indeed, Justice Ollero has recently signed a polemical decision that grants pharmacists the right to conscientious objection to issue the day-after pill, which the decision considers an abortive method in the absence, it claims, of any conclusive proof to the contrary (STC 145/2015, 25 June).
Meanwhile, after a marginal increase in 2011 (12.44 for every 1000 pregnancies), the number of abortions resumed in 2012 and 2013, the declining trend started in 2009 (12.01 and 11.74 for every 1000 pregnancies, respectively). 21 Along with this has come an increase in the number of public health centres that perform abortions (from 49 in 2010 to 103 in 2013), while the number of private clinics declines (from 97 in 2010 to 95 in 2013), although seven autonomous communities, together with Ceuta and Melilla, still rely on agreements with private clinics. 22 These encouraging data notwithstanding, Spain’s conservative popular party included the abrogation of Organic Act 2/2010 in its platform for the 2011 general election. Once in government, it drew a draft bill on abortion reintroducing the punitive regulation in force between 1985 and 2010, this time without the eugenic exception. This could only be sustained indirectly, through the therapeutic exception, designed to protect pregnant women’s physical and also mental health during the first 22 gestation weeks (or later if foetal anomalies incompatible with life were discovered after that period). Any health risk must be certified by two medical reports (one if the woman’s mental health is at risk because of certified foetal anomalies incompatible with life) issued by two different specialists not working in the clinic where the abortion would be performed. Other than in ethical abortions, authorized in cases of reported rape during the first 12 gestation weeks, women’s legal access to abortion was thus placed in the hands of doctors. It would also be doctors, not women, who could be held criminally responsible for illegal abortions. Indeed, in line with the most recent discourses of the United States Supreme Court, 23 the new draft bill sought justification through the victimization of women, holding ‘structural violence’ and ‘pressure’ responsible for women’s decision to abort. 24 Women, the government claimed, need the state’s assistance and protection against unwanted abortions. Although supported by the far right and the Catholic Church, this return to women’s passive citizenship met with stark social and political contestation in Spain and beyond, 25 even within the ranks of the popular party. As a result, the draft bill was withdrawn and its main advocate, the Minister of Justice, resigned. Raising women’s consenting age to abortion appears to have been a way to appease the most conservatives’ voices within and beyond the party.
Coming Full Circle: Gender and Discourses on Abortion
Every regulation of abortion has strong gender implications. Non-legal discourses rely on assumptions deeply entrenched in the modern construction of gender: about women’s nature, natural duties to care and natural need for tutelage in the face of own moral weakness. 26 The same applies to confrontational discourses that oppose the interests of the foetus and the pregnant woman and that are both counterfactual in their assumptions and male biased in their analytical tools. It is both counterfactual and male biased to isolate the pregnant woman and the foetus as separate individuals and confront them as potential enemies, instead of embracing their essential interconnection and the need to protect the one through the other. It is also counterfactual and male biased to look at pregnancy in isolation from its social, economic and legal contexts, to ignore how a woman’s position in these contexts conditions her relationship to the foetus and her future motherhood. The result is a distorted view of abortion that misses its social and gendered reality (García Pascual, 2006; Gilligan, 1982) and that prevents a dialogue between this reality and the law, thus placing women in a position of helpless heteronomy (Jaggar, 2009: 164).
The alternative is a self-referential regulation of abortion that rests on the tenets of democratic citizenship and contemplates abortion from a relational perspective that does not assume any antagonism between unborn life and women’s autonomy but is consistent with both women’s active citizenship and the state’s constitutional obligations towards the unborn. From this standpoint, we can face some of the issues the regulation of abortion still raises, such as the definition of an adequate time frame; the justification for abortion limitations before the foetus’ viability; the justification for forcing pregnant women to carry pregnancy to term after viability; or the possibility of allowing them instead to give birth prematurely, so that the state can take direct care of the foetus. Most important is the question of how the state’s social responsibilities towards unborn life should be implemented. Indeed, a relational approach to abortion must be part of a wider relational approach to pregnancy and parenthood. This implies that, in order for their choice to be truly autonomous, women must have enough meaningful options available to them (Raz, 1986: 373). This includes the possibility of saying No to an unexpected pregnancy but also of saying Yes to it unimpeded by socio-economic constraints. The state’s efforts to protect unborn life should be geared towards creating a socio-economic context where pregnancy and motherhood are meaningful options, in Raz’ sense, within women’s relationship networks, where the (personal, professional, financial and emotional) cost of pregnancy and parenthood does not rest primarily on women, but is more widely shared: by men and by society at large.
Organic Act 2/2010 was enacted as part of a package of legal reforms, implemented during the last decade, aimed at enhancing women’s active citizenship. 27 The failed draft bill on abortion and the successful amendment of women’s consenting age to abort are thus part of a wider tour-de-force on the (re)definition of gender and women’s citizenship. This tour-de-force is now being played out within the Constitutional Court. The denouement of this chapter in the history of abortion regulation in Spain remains yet to be written.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.