ABORTION: A COMPARATIVE CONSTITUCIONAL LAW PERSPECTIVE

Introduction 15
Antonio Troncoso Reigada.
CHAPTER I
Abortion in Germany: legislation and doctrine of the German Federal Constitutional Court 39
Antonio Troncoso Reigada.
I. Abortion legislation in Germany 40
II. The Act of 24 June 2022 repealing § 219a of the German Criminal Code on advertising for the termination of pregnancy and the report of 15 April 2024 of the Commission on Reproductive Self-Determination and Reproductive Medicine 47
1. Introduction 47
2. The Act of 24 June 2022 repealing § 219a of the German Criminal Code on the advertising for the termination of pregnancy 49
3. The Report of 15 April 2024 of the Commission on Reproductive Self-Determination and Reproductive Medicine 58
III. The doctrine of the German Federal Constitutional Court on abortion 98
1. The protection of the right to life of the unborn child and the termination of pregnancy as an act in violation of the law 100
2. Exceptional situations and system of indications. The controversy surrounding the embryopathic indication 101
3. The questioning of the system of time limits and the criticism of gradualism. 106
4. The model of compulsory counselling 107
5. The formula “unlawful but not punishable” 110
Bibliographical references 117
Documents 118
Abbreviations and Acronyms 119

CHAPTER II
Abortion in Spain: the embarrassing legislation on women´s sexual and reproductive health and the constitutional court´s rulings 44/2023 and 29/2024 on abortion 121
Jorge Rodríguez-Zapata Pérez
I. THE CURRENT REGULATION 122
II. HUMAN LIFE 126
III. THE COMPATIBILITY OF THE SYSTEM OF INDICATIONS WITH THE PROTECTION OF THE LIFE OF THE UNBORN 129
IV. THE TIME LIMIT SYSTEM AND ITS INCOMPATIBILITY WITH THE STATE'S OBLIGATION TO PROTECT THE FUNDAMENTAL RIGHT TO LIFE 136
V. THE INSUFFICIENT JUSTIFICATION OF THE SYSTEM OF TIME LIMITS IN CONSTITUTIONAL JURISPRUDENCE 144
VI. THE ALLEGED FUNDAMENTAL RIGHT OF THE PREGNANT WOMAN TO HAVE AN ABORTION 148
VII. CONSCIENTIOUS OBJECTION 158
VIII. THE GENDER PERSPECTIVE 161
IX. CONCLUSIONS 162
BIBLIOGRAPHICAL REFERENCES 163
CHAPTER III
The Unsettled (and Unsettling) State of Abortion Law in the United States in 2024 165
Teresa Stanton Collett.
I. THE LEGAL SHIFTS IN U.S. ABORTION LAW: A PIVOTAL MOMENT IN U.S. JURISPRUDENCE 166
II. THE DEMISE OF ROE V. WADE: A HISTORIC REVERSAL 167
III. REFRAMING ABORTION RIGHTS: PLANNED PARENTHOOD V. CASEY 171
IV. THE TURNING POINT: DOBBS V. JACKSON AND THE END OF FEDERAL ABORTION PROTECTIONS 173
V. THE LEAKED DOBBS OPINION: POLITICAL AND SOCIAL REPERCUSSIONS 174
VI. DEMONSTRATIONS AND CRIMINAL ACTS PROTESTING THE OVERRULING OF ROE 175
VII. PRESIDENTIAL POWER AND ABORTION: BIDEN’S RESPONSE TO THE DOBBS RULING 177
VIII. THE NEW FRONTIER: CHEMICAL ABORTIONS AND LEGAL BATTLES 178
IX. THE UNCERTAIN FINALITY OF FDA V. ALLIANCE FOR HIPPOCRATIC MEDICINE 181
X. CONTROLLING THE DEFINITION OF “EMERGENCY” 185
XI. CURRENT U.S. SUPREME COURT JURISPRUDENCE 188
XII. CAN CONGRESS ACT? FEDERAL POWERS AND LIMITATIONS IN ABORTION REGULATION 189
XIII. ABORTION AND INTERSTATE COMMERCE 191
XIV. ABORTION AND SECTION 5 OF THE FOURTEENTH AMENDMENT 193
XV. ABORTION AND ARTICLE I SPENDING POWER 196
XVI. “51 IMPERFECT SOLUTIONS” AND STATE ABORTION LAW 200
XVII. ABORTION LAW IN 2024: THE IMPACT OF THE PRESIDENTIAL ELECTION 202
XVIII. CONCLUSION: LEGAL UNCERTAINTY AHEAD 203
BIBLIOGRAPHICAL REFERENCES 203
CHAPTER IV
Abortion in the United Kingdom 207
Mehmet Ciftci.
I. INTRODUCTION 207
II. HISTORICAL BACKGROUND 208
III. ABORTION ACT 1967 216
IV. DEVELOPMENTS SINCE 1967 221
BIBLIOGRAPHICAL REFERENCES 224
CHAPTER V
Abortion in France. The inclusion in the Constitution of the freedom to have an abortion, between ”right” and “freedom” 227
Xavier Bioy
I. “GUARANTEED” FREEDOM 235
1. The constitutionalisation process, the virtues of form and substance 236
2. Overexposure of a guarantee among other components of bodily liberty 241
3. The collective assumption of a distinction between rights and freedoms, synonymous with enforceability and resulting from the State's obligations to act 243
II. THE ELEMENTS OF A “RIGHT” 245
1. Link with “social rights” and their enforceability 245
2. The conditionality of the guarantee 248
III. FREEDOM “GUARANTEED” BY LAW 250
1. The content of positive constitutional obligations 251
2. Effects of the reform on legal categories 253
BIBLIOGRAPHICAL REFERENCES 255
CHAPTER VI
Abortion in Hungary: legislation and the doctrine of the Constitutional Court 259
Balázs Schanda.
I. BRIEF HISTORIC REMARKS ON ABORTION 259
II. LIBERALIZATION 260
III. CONSTITUTIONAL COURT DECISION 1991 (DECISION 64/1991. (XII. 17.) 261
IV. 1992 LAW: ACT LXXIX/1992 ON THE PROTECTION OF FETAL LIFE 264
V. 1998 CONSTITUTIONAL COURT DECISION AND THE SUBSEQUENT AMENDMENT (48/1998. (XI. 23.) AB) 267
VI. STATISTICS AND SOCIAL REALITY 268
VII. CROSS-BORDER ASPECTS 269
VIII. MEDICAL INDICATIONS 270
IX. FUNDAMENTAL LAW 271
X. HEARTBEAT-DECREE 272
XI. UNBORN LIFE IN PRIVATE LAW 273
XII. UNBORN LIFE IN PUBLIC DEBATE 274
XIII. CONCLUSION 275
BIBLIOGRAPHICAL REFERENCES 275

CHAPTER VII
Abortion in Italy: legislation and doctrine of the Constitutional
Court. 277
Luigi Melica
I. THE RIGHT TO ABORTION IN ITALY: FROM A CRIMINAL OFFENSE TO A LAW OF CONSTITUTIONAL RELEVANCE 277
II. THE CONTENT OF THE LAW 194/1978 280
III. THE MOST RELEVANT CASE LAW ON ABORTION RIGHTS IN ITALY 282
1. The depenalization of the crime of abortion 283
2. The rights of self-determination of the woman vs. the interest of the father 284
3. Case law on minors and the interruption of the pregnancy in Italy 286
4. Case law on conscientious objection of doctors and right to abortion in Italy 289
IV. CURRENT DEBATE AND CHANGES REGARDING THE RIGHT TO INTERRUPT PREGNANCY IN ITALIAN LEGISLATION 292
V. COULD THE “DIGNITY” OF THE EMBRYO PAVE THE WAY FOR A NEW CASE LAW? 295
BIBLIOGRAPHICAL REFERENCES 298
CHAPTER VIII
Abortion in Portugal: legislation and doctrine of the Constitutional Court 301
Jónatas E. M. Machado.
I. INTRODUCTION 301
II. ABORTION IN PORTUGUESE LAW 303
1. Politico-cultural context 303
2. Punishability of abortion as a norm 307
3. Exceptions to the punishability of abortion 309
III. ENDLESS DISCUSSION 314
1. Arguments in favour of abortion 315
2. Arguments against abortion 318
IV. IS IT POSSIBLE TO AGREE TO DISAGREE? 324
V. CONCLUSION 329
BIBLIOGRAPHICAL REFERENCES 330
CHAPTER IX
Abortion in Poland: legislation and doctrine of the Constitutional Court 333
Dobrochna Bach-Golecka
I. INTRODUCTION 333
II. GENERAL REMARKS 339
III. EVOLUTION OF POLISH REGULATORY APPROACH TOWARDS ABORTION 343
1. Initial legislative stage 343
2. Communist period legislation. 343
Termination of Pregnancy Act of 1956 344
3. Legislation of democratic Poland 352
Minister of Health and Social Protection Regulation of 1990 352
Abortion compromise: Family Planning Act of 1993 357
Change of abortion compromise: Change of Family Planning Act of 1996 366
Freedom of conscience clause: Act on the Profession of Physician of 1996 369
4. Constitutional Tribunal on abortion. 372
Judgment of 1997 concerning change of abortion compromise 372
Judgment of 2015 concerning freedom of conscience 380
Judgment of 2020 concerning eugenic abortion criteria 393
5. Evaluation 413
IV. CATHOLIC THEOLOGY AND CANON LAW ON ABORTION 417
1. Biblical teaching upon the gift of life 418
2. Catholic social teaching upon abortion 422
3. Canon law perspective on abortion 424
4. Evaluation 426
V. ABORTION WITHIN THE EUROPEAN UNION LAW PERSPECTIVE 427
1. Abortion as a service 428
2. Abortion and healthcare 430
3. Abortion and human rights 432
4. Decision-making on abortion 435
5. Evaluation 439
VI. CONCLUSION 441
BIBLIOGRAPHICAL REFERENCES 443
CHAPTER X
Abortion in the jurisprudence of the European Court of
Human Rights 445
Grégor Puppinck.
I. THE STATUS OF THE UNBORN CHILD UNDER THE CONVENTION 447
1. There is no exception to the right to life regarding abortion 447
2. The silence of the Court on the nature of the unborn child 450
3. The Court did not use the incremental approach 453
4. The European Convention and the Court do not explicitly exclude the unborn child from the scope of the Convention 455
5. States may recognise the unborn child as a “person” 459
II. THE ABSENCE OF A RIGHT TO ABORTION 461
1. All High Contracting Parties permitted abortion when necessary to save the life of the mother 462
2. Article 8 cannot be interpreted as conferring a right to abortion 463
III. “ONCE A STATE ALLOWS ABORTION”: THE COMPETING RIGHTS AND INTERESTS 468
1. The rights and interests of the mother 470
2. The rights and interests of the unborn child 477
3. The rights of the relatives of the child 484
4. The rights of medical professionals and institutions 485
5. The public interests of the society 485
6. Implementing these rights and interests 487
IV. CONCLUSION 489
CASE LAW CITED 489
CHAPTER XI
Freedom of conscience and the fundamental right not to kill 493
Javier Martínez-Torrón.
I. DIVERSITY, AWARENESS, IDENTITY 493
II. THE LEGAL RELEVANCE OF ETHICAL CHOICES WITH REGARD TO THE PROTECTION OF HUMAN LIFE 495
III. A PLURAL LEGAL PANORAMA 497
IV. LESS PROBLEMATIC OBJECTIONS 498
V. THE NEW ETHICAL FRONTIER: ABORTION AND EUTHANASIA 500
VI. IDEOLOGICAL SOLUTIONS TO LEGAL PROBLEMS 504
VII. IN SEARCH OF THE NECESSARY LEGAL CONSISTENCY 511
BIBLIOGRAPHICAL REFERENCES 515
CHAPTER XII
Evolution in the legal status of abortion: from moral crisis to legal revolution. Analysis from an expanded reason perspective 517
María Lacalle.
I. SCIENCE 518
II. ETHICS 519
III. LAW 522
IV. THE ROLE OF THE STATE 526
V. THE ROLE OF UNIVERSITY 530
BIBLIOGRAPHICAL REFERENCES 532

There is a plurality of legislation and jurisprudence on the voluntary termination of pregnancy in Europe. Many countries have made progress in the recognition of the right to abortion and have offered a perspective of normalisation of this issue. At the same time, the approach to abortion as a right has also been met with resistance in other countries. Abortion is therefore subject to broad social debate
around the world. The Francisco de Vitoria University of Madrid, through the Global Common Good Center and the Open Reason Institute, organised the Seminar "Abortion: A Comparative Perspective" on 14 and 15 October 2024. This Seminar aimed to offer society a different constitutional perspective on this issue to enrich the debate.
This book contains the contributions of different professors which were presented at the seminar. It discusses the abortion legislation of the different countries and the doctrine of their Constitutional Courts: Germany, Spain, the USA, the United Kingdom, France, Hungary, Italy, Portugal and Poland. Finally, the book studies abortion in the jurisprudence of the European Court of Human Rights and freedom
of conscience and delivers an analysis from an expanded reason perspective.
While the dignity of the person, the right to life and the free development of a woman's personality are the basis of the discussion on the legitimacy of voluntary termination of pregnancy, in general, however, human rights are dependent on specific anthropological conceptions, if not ideological choices. Therefore, the first reflection must be to affirm the practical preference of the democratic principle over ethical reflection. It is the responsibility of the different political majorities and minorities to approve the legal frameworks that determine the preference of conflicting rights. A second reflection would be to highlight the importance of continuing to work on arguments. The truths about the human being must also be sought through debate and rational dialogue about what is just and what is unjust.