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7 January 2014

Q&A – The Spanish abortion law

The Spanish government has approved a restrictive new law that would make abortion illegal except in very limited circumstances. Voices from around the world have condemned this move. Here, we discuss how the proposed new law differs from previous Spanish legislation on abortion, and what this is likely to mean for women and the doctors who care for them.

1) What does the new law say?

The Spanish newspaper El País has published a list of 10 ‘key points’ about the new law. In these, probably the most significant are the removal of the right to abortion; the reintroduction of strict medical criteria as justification for abortion; and the removal of fetal anomaly as a justification for abortion.

a) The right to abortion

The right to have an abortion was enshrined in the law of 2010, which permitted abortion on request in the first 14 weeks of pregnancy. The 2010 law was widely understood as a liberalisation of the previous 1985 law. By allowing abortion on request in the first trimester of pregnancy, it was considered to bring the Spanish abortion law into line with many other European countries, where abortion is available on request up to 12 weeks’ gestation, although often with certain restrictions.

b) Strict medical criteria

Under the new law, approved in 2013, abortions will be permitted in only two circumstances: rape, and risk of ‘lasting harm’ to the mother’s health. In this regard, the law uses similar language to the abortion law of 1985, which permitted abortion if the following conditions were met:

(a) the abortion is necessary to avert a serious risk to the physical or mental health of the pregnant woman, in accordance with an opinion expressed prior to the abortion by a physician, other than the one performing the abortion or under whose direction the abortion is to be performed, and who holds an appropriate specialist qualification;.

(b) the pregnancy is the result of rape, provided that the rape has been reported to the police and the abortion is performed within the first 12 weeks of pregnancy; or

(c) the foetus, if carried to term, will suffer from severe physical or mental defects, provided that the abortion is performed within the first 22 weeks of pregnancy and the medical opinion, communicated prior to the abortion, is expressed by two specialists of an approved public or private health centre or establishment, neither of whom is the physician by whom or under whom the abortion is to be performed.

On paper, the 1985 law was highly restrictive and permitted abortion only on the grounds of rape or ‘serious risk to the physical or mental health of the pregnant woman’. For this reason, several reports have presented the new law, approved in 2013, as a ‘return to 1985’. However, the 2013 law is far more restrictive than the 1985 version, both in letter and in interpretation.

The proposed new law stipulates not only that the abortion must be approved by a doctor who is not connected with the abortion procedure (as in 1985), but that it is approved by ‘two specialists, unconnected to the clinic where the procedure is to be carried out’.  This explicitly targets abortion doctors and clinics as the objects of suspicion, and makes clear that an assessment of the risks to a woman’s physical or mental health is not a matter of a clinician’s individual judgement, but a matter of decision by committee, about the degree to which a woman will face ‘lasting harm’ by continuing her pregnancy. This is of particular significance with regard to the interpretation of this new law: a point that we examine below.

c) The removal of fetal anomaly as a justification

As El País points out, ‘Unlike under the 1985 law, serious fetal malformation will not be considered a justification’, unless it is ‘incompatible with life’. This is a significant shift away from both the law of 1985 and the law of 2010, which permitted abortions at gestations of up to 22 weeks if two doctors certified that there was a serious risk of anomaly.

By refusing to acknowledge fetal anomaly as a justification for abortion, the law proposed in 2013 makes the grounds on which abortion can be legal as narrow as it possibly can be. When El País warns that this move represents a return to ‘the dark days of Spain’s past’, it is not talking about a return to 1985, when abortion was legalised in restrictive circumstances for the first time; but the days of the Franco dictatorship and its immediate aftermath, when abortion was simply outlawed. Then, ‘women with financial means who wish to abort’ travelled abroad, and poorer women faced ‘a risky clandestine procedure’.

2) How has the new law come about?

Spain’s conservative Popular Party (PP) won a landslide victory in 2011, resulting in the biggest defeat for the Socialist party for over 30 years. One of the PP’s election pledges was to reform the 2010 abortion law that the previous (Socialist) government had brought in. Spain’s justice minister, Alberto Ruiz-Gallardón, made explicit the government’s plans for tightening the law in May 2013, though no formal proposal had yet been tabled. What was approved by the Cabinet on 20 December was ‘a series of controversial modifications’ to the 2010 law, and the Financial Times (London) reports that PP leaders are due to meet this week to discuss these.

At the time of writing, these modifications have yet to be passed by parliament. It has been widely reported that, because the Popular Party, headed by prime minister Mariano Rajoy, holds an absolute majority in parliament, the bill is ‘almost certain’ to pass and become law. The timescale for this is currently unclear.

However, there has been vocal opposition to the proposed new law, including from some within the Popular Party. The Financial Times reports on ‘mounting signs of internal dissent’, in which ‘José Antonio Monago, a senior PP leader and the president of the region of Extremadura, has emerged as the most vocal PP critic of the draft law so far, declaring… that “nobody can deny anyone the right to be a mother. Neither can anyone be forced to be a mother.”’ There have been demonstrations against the draft law within Spain, and the law, which ‘defies a decades-long push to liberalise abortion regimes across Europe’, has ‘raised eyebrows in several EU capitals’.

3) What will the law mean for Spanish women?

Ruiz-Gallardón has insisted that the new bill will not criminalise women for having abortions. But given the restrictions on what doctors will legally be permitted to do, these words will come as little consolation to women. Women’s organisations have predicted the re-emergence of ‘abortion tourism’, as women will be forced to travel abroad to seek care, or find ways to induce their own abortions outside the healthcare service. This will clearly limit women’s capacity to have the abortions that they need, and put their health at risk.

Socialist Party spokeswoman Elena Valenciano has said that the new law ‘is unnecessary, cynical and unfair because it damages women’s autonomy.’ All of these points are true. On 20 December, a number of pro-choice organisations published an article in El País headlined ‘Ten reasons not to change the abortion law’, in which it stated: ‘Spain is facing tough times and using abortion, which causes so much suffering for women, as a bargaining chip to please the most conservative factions of the electorate, is not fair to women or society as a whole.’

The recent attempt to restrict abortion is a political gesture, rather than a move born of genuine public concern. While Spain is a largely Catholic country currently governed by the conservative Popular Party, a number of reports have indicated that public opinion is equivocal on whether the law should be tightened, while as noted above, even some Popular Party politicians have voiced their reservations about the extremity of this new legislation.

Some newspaper editorials have made robust and principled critiques of the over-extension of state power that such a restrictive abortion law implies. On 23 December, the London Times concluded its editorial with the statement:

‘To bring the criminal law into an issue of women’s health and conscientious reflection is an abuse of government power. A constitutional society does not intrude into areas of personal judgment that most citizens consider fall within the authority of the family. Social engineering is the practice of autocratic governments. Spain’s friends and allies in Europe should prevail on Mr Rajoy to think again.’

On 22 December, El País argued:

‘Under such a reform, Spain has returned to an era we thought we had left behind. This bill consecrates an authoritarian system of regulation that places women in the position of minors, whose capacity to decide has been subordinated to third parties who will make decisions that will affect the rest of their lives.

‘With this reform, the government is confusing private morality and public morality. It is giving the state the power to decide in which cases a woman may abort according to certain religious beliefs that belong to the private sphere and are not even held by a majority of the population. In support of the beliefs of a minority, the state is set to equip itself with the power to oblige all women who do not meet strict criteria to give birth, including many who do not even share these beliefs.

‘The 2010 law does not force anyone to have an abortion. With the new rules, many women will be obliged to see through unwanted pregnancies. In a plural society, this kind of imposition is an attack on the culture of democracy.’

The extreme abortion law approved by the Spanish government brings home the extent to which concepts such as women’s autonomy, privacy, and the proper role of the criminal law are not mere abstract discussions. When governments turn their backs on these principles in order to push through politicised abortion laws, this affects women’s most intimate lives.

4) What does the law mean for doctors?

For abortion doctors, the situation is indeed worse than at any time since 1985. The 1985 law represented an important step away from the Franco era and towards a more progressive, liberal democracy. This was reflected in the way that the law was interpreted. Abortion was not a right, and nor was it publicly funded: as a United Nations document on Spanish abortion policy explains, in 1988, ‘an estimated 94 per cent of all abortions were carried out in private clinics’.

However, doctors working in these private clinics were given the latitude to interpret the law quite liberally. The UN notes that approximately 85 per cent of the abortions performed in private clinics were done ‘on the grounds of averting severe danger to the woman’s physical or mental health (especially mental health), which may conceal reasons prohibited by law’. Because there was no gestational time limit placed upon abortions carried out because of the risk to physical or mental health, this meant that paradoxically, women from other European countries (including the UK) would occasionally travel to Spain to seek abortions when they were ‘too late’ to obtain them legally at home.

The tension between the letter and interpretation of the 1985 law created an uneasy situation for doctors and clinics. In 1991, the Supreme Court of Spain ‘sanctioned abortion for the first time on social grounds’, by dismissing a criminal case against a married couple and the friend who helped them: ‘The Court pointed to the fact that the couple could not support another child and that the woman was suffering both physically and mentally’. Yet the Court upheld the conviction of the physician. So while there was a tacit recognition that serious risks to a woman’s mental health could be seen to arise from the ‘social’ circumstances surrounding her pregnancy, doctors’ judgement in this regard was still open to question.

This tension reached breaking point in 2007, when police raided abortion clinics in Barcelona and Madrid, and more than a dozen medical staff were arrested on suspicion of carrying out illegal abortions. In consequence, the abortion clinics went on strike for a week, calling for a change in the law that would provide better legal protection for women and doctors.

The lack of clarity over the law during this period was starkly highlighted by the case of Dr Carlos Morín of the Ginemedex clinic in Barcelona, who in 2011 was charged with 101 ‘illegal abortions’, for which he faced a possible facing a possible sentence of 273 years in prison. In January 2013, Morín, along with 10 other defendants, was absolved of all charges; yet in November 2013, the Supreme Court revoked the acquittal. Whatever the ins and outs of this particular case, this flip-flopping between prosecution and acquittal indicates the confusion deep at the heart of the Spanish abortion law.

It was against this backdrop, where doctors who felt themselves to be operating within the law were at continual risk of being accused of flouting the law, that abortion providers and women’s groups pushed for the law of 2010. By establishing abortion as a right in the first 14 weeks of pregnancy, to be offered by publicly funded clinics as well as private clinics, much was done to establish the legitimacy of abortion in the first trimester. In practice, the 2010 law had many limitations: most notably, women seeking abortion later in pregnancy could no longer be cared for. Yet it provided doctors and women with the kind of protection that had been stripped away in the years following 2007.

With the 2013 law, doctors and women have the worst possible scenario. The law is more restrictive on paper than the 1985 version, and clearly designed to be interpreted in the most limited way possible.  The stated need for two doctors from a different clinic to approve the abortion is clearly an attempt to restrict provision even further, as well as providing an implicit slur on the motivations of abortion doctors. The new law intends to restrict provision further by giving every member of the medical profession the right to conscientious objection: previously, this was possible only for those ‘directly involved’ in the procedure – the doctor, midwife and anaesthetist.

It is very difficult to see how doctors will be able to work under these conditions. Francisca Garcia of the Association of Accredited Abortion Clinics, which represents the vast majority of Spain’s abortion clinics, has said that about 100,000 of the 118,000 abortions carried out last year would be illegal under the new legislation. And as El País points out, ‘even though the new law will not impose penal sanctions on women who break it, physicians who do so will be punished.’

The government’s cowardly claim that the law will not send women to jail pretends that women won’t be punished by having to carry an unwanted pregnancy to term, or by having to travel hundreds of miles abroad to have a procedure that, until last year, was established as their right.

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Also read:

Abortion law: the lessons from Spain. Commentary by Jennie Bristow, editor, Reproductive Review, 8 January 2014

Spain: Government approves restrictive abortion law. Reproductive Review, 22 December 2013

Commentary: What the Spanish abortion law has meant for European women. Reproductive Review, 31 January 2013