SUPPOSE that, appealing to the general interest that the Administration should promote and to the special relationship of public servants with the Administration, a legislator composed mostly of communist political forces were to force civil servants to satisfy the rights of the disadvantaged by accommodating their conduct to the principles of the class struggle. The civil servants would undoubtedly react, alleging an attack on their ideological freedom. Let us suppose, however, that the legislator were to create a register in which, under certain conditions, civil servants could register in order, exceptionally, to be exempted from conforming their conduct to such principles. Few would be convinced by this solution. Suppose, finally, that a majority Christian Democrat parliament were to do the same with the principles of Christianity. We would not be at agreement either.

The situation changes radically, however, when it comes to military service. Suppose the legislator were to reestablish compulsory military service for all Spaniards without exception. Many would consider it an encroachment on their freedom, but we would be willing to accept compulsory military service if, under certain reasonable conditions, Spaniards could register in a "register of objectors". In this case, the solution does not seem far-fetched.

The answer is very simple: because the first two duties cannot legitimately be imposed, not even presumptively, on citizens - nor on civil servants, whose hierarchical subjection (art. 103.1 CE) must be interpreted reductively when it is a question of limiting fundamental rights (vid, for example, STC 69/1989). This being so, only in the third case does the refusal to comply deserve the name of "objection to a duty". It is no coincidence that the term "conscientious objection" germinated at the end of the 19th century and, above all, during the First World War, to describe peaceful resistance to military conscription.

The speech of conscientious objection always implies the legitimacy of the duty objected to, the legitimacy of the State to impose, at least a priori, the conduct in question. When we are faced with a conduct not provided for by the Constitution - as is the case with compulsory military service (art. 30.2 CE) but by law, ideological freedom, recognized by the Constitution as a fundamental right, is first imposed as a limit to the "legal mandate", as a test to which the latter must submit. If the mandate is against the freedom of conscience, it cannot be subjected to a test.
If the mandate infringes on freedom of conscience, it cannot be qualified as a "legal duty", and the language of objection constitutes a trap that contains, in itself, an attack on freedom of conscience, a spurious duty.

This is exactly what has happened with the misnamed "conscientious objection to abortion". In 2010, a Spanish legislator with little concern, frankly, for the freedom of conscience of physicians who are reluctant to perform abortion, regulated "objection" with important restrictions, among them the exclusion of the possibility of objecting for professionals indirectly involved in abortion and the requirement to declare the objection in advance. Subsequently, some Autonomous Communities went a step further by creating a registry of objectors that discourages objection. Finally, in a deplorable ruling, at the end of last September, the Constitutional Court endorsed the registry established in Navarra on the basis that conscientious objection entails, as such, the exemption of a legal duty. Now, can the legislator impose a legal duty to abort? Taking the duty for granted, the speech of the objection avoids even raising the question.

If, instead of prematurely analyzing the matter from the point of view of objection, the legal duty imposed by the legislator had been confronted with the fundamental right to freedom of conscience, result would have been very different, and those who resist abortion would not have had to go on the defensive. Since the legislator could not impose a duty on abortion without infringing on the freedom of conscience of the professionals involved - even though they are subject to a special relationship of subjection to the Administration - the State would have had to seek out physicians willing to do so. For example, by asking them to declare in advance their availability willingness to perform abortions or by creating a registry of health professionals willing to perform abortions. Why did the legislator not do so? Why did he defend abortion as a freedom of women and regulate it as a duty of physicians We do not know, but it was not to honor his vaunted policy of expanding rights. The national legislator should take steps to restore freedom of conscience.