New frontiers of abortion constitutionalism

For years, the Spanish Constitutional Court delayed its decision on a pending constitutional review challenging Spain‘s 2014 periodic model abortion law. A decision is expected in the near future. Spain's conservative Court may uphold the law exercising both judicial self-restraint and political judgment, but it may also strike down the current law. Most regressive, and maybe unlikely, would be for it to force a return to an indications model of abortion. More likely, though also regressive, might be the imposition of certain requirements, such as, for instance, a prior dissuasive counselling procedure which, in the name of giving protection to the unborn, would de facto restrict women´s access to abortion and, just as importantly, symbolically alter its meaning in stigmatizing ways. In so doing, it might find itself in the situation of picking from various existing European precedents including those in Germany and Portugal.

On March 2012, the Argentine Supreme Court issued FAL, its historic decision on the constitutional status of the criminal code rules regulating abortion. At the time, the decision was considered both modest and groundbreaking. Ultimately, in FAL the Court was merely convalidating the constitutional status and scope of the rape exception written into Argentine Criminal law since 1921. Yet, FAL could also be read doctrinally as a landmark contribution opening a new phase in the fight for legalization. While learning from the Colombian Constitutional Court‘s 2006 precedent, the Court was also pushing further the content of a reproductive right that encompassed, among others, institutional duties to guarantee and to cover access to abortion. A decade later, we can still look back at FAL to appreciate not only its doctrinal relevance but its broader role in the history of judicial contributions to constitutional change and the path towards the transformation of women‘s role in our democracy.

In 2016, the Supreme Court reaffirmed and strengthened Roe and Casey‘s constitutional protections for decisions about abortion. This Term, a Supreme Court (with Justices the Republican Party breached norms to appoint) has signaled its intention to dismantle that framework. After oral argument in Dobbs v. Jackson Women‘s Health Organization, all observers expect the Court to uphold Mississippi‘s ban on abortion after 15 weeks. It is not clear what constitutional limits, if any, the Court will preserve in this area, and how Dobbs will threaten other protected liberties. Polling shows strong support for preserving Roe (62%/31% - 67%/27%)—and dramatically declining confidence in the Supreme Court. With changes on the Court, there is a frenzy of debate, institution building, and lawmaking, as the nation prepares to sort itself into regions where abortion (and more) is banned and others where states are developing a twenty-first century law of reproductive justice. Without Roe as a focus, advocates are staking out new terrain in the name of family and community, health, liberty, equality, and life.

The abortion rulings of the Polish Constitutional Court of 1997, 2015, and 2020 are based on the same constitutional reasoning. They recognize the rights of the fetus but ignore women's constitutional rights to self-determination while emphasizing women's obligations to the conceived child. Poland is the only country in the CEE region accepting the indication model that does not allow abortion without cause. In 2020, despite mass protests, these indications were tightened and abortion due to fetal defects was practically excluded. So what are the chances of changing the predominant understanding of abortion as a moral wrong towards its recognition as an element of reproductive health care and substantive gender equality in Poland?

In 2006, the Constitutional Court of Colombia (“the CCC“) recognized abortion was key to the self-determination, privacy, and health of women, and legalized abortion under three limited circumstances. These limited rights, coupled with barriers of culture and medical “conscience,“ did little to alter actual access, especially for poor women. After a concentrated multi-year campaign aiming to “socially decriminalize“ abortion, the Causa Justa Movement helped begin a change of public opinion around abortion, “link[ing] the idea that freedom of women is a fundamental element for the exercise of citizenship,“ as one of the leaders framed it. Causa Justa brought suit challenging the criminalization of abortion as counterproductive, discriminatory, and unjust. In February of 2022, the CCC decriminalized abortion during the first 24 weeks of pregnancy. Even as the backlash has mounted focused on the 24 weeks cut-off period for a criminal prosecution,  the success of the movement‘s innovative strategies marks an important shift in national and transnational understandings of the constitutional community.