Justice Minister Alberto Ruiz-Gallardón’s plan to turn back the clock on access to abortion has enraged women across Spain, exposed deep divisions within the ruling Popular Party, and threatens to put Spain out of step with the vast majority of EU member states. Restricting safe and legal abortions will also put Spain at odds with many of its obligations to respect rights under international law, and expose it to intense scrutiny by international human rights bodies.
Since 2010, women in Spain have had the right to terminate a pregnancy up until the 14th week. The proposed changes, approved by the government in late December but not yet put before parliament, would allow abortion only if the woman’s physical or mental health is endangered (up to 22 weeks) and in rape cases (up to 12 weeks).
Under the proposed law, two doctors would have to certify that the woman’s health is endangered, a rape victim would have to have reported the rape to the police, and girls would have to get parental or guardian consent. The bill would allow doctors to refuse to perform abortions for reasons of conscience, threaten doctors who performed abortions outside the law with criminal prosecution, and prohibit advertising for abortion services.
The government’s proposal is even more restrictive than the 1985 law that was replaced in 2010 in that it would not allow for terminating pregnancies due to fetal abnormalities except when these abnormalities were incompatible with life beyond the womb and would risk damaging the woman’s mental health. This issue in particular has been the focus of debate, and may be the one aspect of the bill for which the government is willing to accept revisions.
If passed by parliament, even with the modest modifications the government has signaled, this law will be a huge step backward for women’s human rights in Spain. The government is likely to face difficult questions from the United Nations Human Rights Committee when it convenes in October to begin the review of Spain’s compliance with the International Covenant on Civil and Political Rights. The UN committee could ask the government to explain how the restrictions comport with the right to life, which international human rights law generally deems to begin when a person is born, given the evidence that restrictive abortion laws drive women to unsafe abortions that can lead to deaths.
UN committee members might also ask about the right to privacy, which includes a pregnant woman’s right to decide whether to undergo an abortion. Or they might cite the right to information, which obligates countries to provide complete and accurate information needed to protect and promote the right to health, including reproductive health.
Committee members may also have questions about the disproportionate impact of the law on the poor and the marginalized. The new restrictions could force women and girls to seek an abortion outside of Spain, raising major concerns about the cost and risk for any woman or adolescent girl with a crisis pregnancy. Those without legal residence, the unemployed or the very poor may simply find it impossible to seek abortion services abroad.
The law will definitely be on the agenda when the UN Committee on the Elimination of All Forms of Discrimination against Women (CEDAW committee) meets in November to draw up its questions to the government of Spain about its record on protecting women’s human rights. Access to legal and safe abortion services is essential for protecting a range of women’s rights, including the rights to health and to freedom from discrimination. The right of women to decide on the number and spacing of their children is also at stake. The CEDAW committee has already criticized laws that criminalize procedures only needed by women as discriminatory barriers on women’s access to healthcare.
The United Nations special rapporteur on health will be watching developments in Spain too. In a milestone 2011 report, he criticized restrictions found in countries around the world that make it harder for women to access legal abortions, such as requirements that abortions be approved by more than one healthcare provider and obstructive conscientious objection laws.
Simply put, the bill would deny pregnant women the right to make independent decisions about their bodies, posing a risk to a wide range of human rights. It would unreasonably interfere with a woman’s exercise of her full range of human rights. That’s why, if passed, the Spanish government will have a lot of difficult questions to answer when facing scrutiny by UN human rights bodies.
Judith Sunderland is senior Western Europe researcher for Human Rights Watch.