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Fernando Simón Yarza, Professor of Constitutional Law, University of Navarra

For the Right to Life

Thu, 26 Jan 2012 09:56:02 +0000 Published in, La Voz de Cádiz

The previous law was not good, but the current law is worse. The Constitutional Court, in its well-known STC 53/1985, ruled on the decriminalization of abortion carried out, for certain cases, by LO 9/1985, of July 5, 1985. Although the Court avoided pronouncing then on the ownership of the right to life by the unborn child, it affirmed that it is "human life" (Legal Basis, FJ 5), and even recognized a core value. According to the High Court, the life of the unborn embodies "a legal right constitutionally protected by article 15 of our Fundamental rule ", which "implies for the State" the obligation to "establish a legal system for the defense of life that provides effective protection of the same and that, given the fundamental nature of life, also includes, as a last guarantee, criminal law".

The Constitutional Court upheld the Organic Law, in any case, on the grounds that the life of the unborn child must not "be absolute in nature", but can be subject to limitations "as happens in relation to all constitutionally recognized goods and rights" (FJ 7). Can it really be said that the right of the unborn child was being limited in the way that "happens in relation to all constitutionally protected goods and rights"? Was it not rather being left outside the law?

The legal consideration of abortion has been altered with Organic Law 2/2010, of March 3, on the voluntary termination of the life of the unborn child. The unborn human being has definitively become, in the first weeks of life, a being lacking any subjectivity of its own(alieni iuris). A system that allows free abortion in the first fourteen weeks of gestation (art. 14) is certainly not a system that defends human life. The juridical-fundamental "good" or "value" that embodied human life has disappeared from legislation in the first fourteen weeks of pregnancy, and the life of the unborn child has become what in dark times not so long ago was called "life without vital value"(lebensunwertes Leben). In addition, women of sixteen and seventeen years of age can have an abortion without parental consent, which is a serious interference in parental-child relationships (Art. 13). And, to continue with the transforming vagaries of the social ethos, the sacred freedom of conscience of physicians has been subordinated to the "effectiveness" of what until not long ago was an illicit conduct that was not punishable. Where is the defense of the unborn child? Where is conscience? Where are parental-filial relations? We hope that the new legislation will effectively protect human life, as is now promised.