Friday, December 8

Scotus and our Constitutional Court

SCOTUS is the acronym by which the Supreme Court of the United States is often referred to (Supreme Court of the United States). The Court has just made public one of the most controversial decisions in its history, its decision on abortion (Dobbsv. Jackson Women’s Health Organization) in which it states the following: “Abortion is a profound moral issue. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. gnaws Y Casey They arrogated that authority. The Court annuls those decisions and returns the authority to the people and their elected representatives”. gnaws (1973) and Casey (1992) are the two cases that had configured the established doctrine (stare decision) about it in the United States for nearly fifty years. In short: that the Constitution recognizes a right of women to have an abortion and that said right must be scrupulously respected by the legislatures of the States, at least until the viability of the fetus.

There are two reasons, in my opinion, that have led to this decision. The first is that for many years, since the presidency of Robert Nixon in the seventies of the last century, an increasingly powerful sector of the Republican Party has included among its priorities placing justices with very conservative ideologies on the Supreme Court, especially in matters relating to human reproduction, such as abortion. This has reached its zenith with the appointment, under the presidency of Ronald Trump, of three justices who are significantly in favor of the abortion ban: Gorsuch, Kavanaugh and Barrett.

The second is that the question of what the power of constitutional review of the laws of the Supreme Court should be is an old one. quaestio disputed, because it is subject to what Alexander Bickel called ‘the counter-majoritarian objection’: the more substantive rights are considered to be implicitly contained in the Constitution, the smaller the scope of democratic decision in that area. An objection that is not only present among conservative constitutionalists, but also among progressive liberals (already one of them, John Hart Ely, criticized Roe at the time for this reason and clear progressives such as Jeremy Waldron or Mark Tushnet have criticized more recently that the Supreme Court has the last word on these issues).

I want to say that the conditions were right for these two factors added together to produce this decision. The decision also argues in favor of considering it justified to deviate here from the stare decision and annul the precedents of Roe and Casey, in one of the most exciting parts of the sentence from the legal point of view, just as exciting in this regard is the dissenting opinion of Justices Breyer, Sotomayor and Kagan. By the way, the president, Roberts, considers it appropriate to keep the constitutionality of the Missouri Law under review, but not to annul the precedents, that is, said annulment (overruling) is produced by a narrow majority of 5 to 4.

Next, I intend to show, if we want to draw any lesson for Spain from this decision, that the nerve of the Court’s argument vindicates the constitutionality of the Spanish regulation contained in the Organic Law 2/2010, of March 3, on sexual and reproductive health and the voluntary interruption of pregnancy, appealed before our Constitutional Court and already more than twelve years waiting for a resolution. Spanish law, as is known and said in a very summary way, establishes that abortion will not be punishable, when it has the consent of the pregnant woman, if it takes place during the first fourteen weeks, a term that can be extended to twenty-two weeks when there is a serious risk to the health or life of the mother or when there are serious abnormalities or extremely serious and incurable diseases in the fetus. Well then, the SCOTUS doctrine applied to the Spanish case allows us to obtain, without any doubt, the conclusion that said Law is fully in accordance with the Constitution. As in the United States, neither does the Spanish Constitution say anything explicitly about abortion, so –according to this doctrine- those who have the authority to regulate abortion are the elected representatives. In 2010, it was a decision of our General Courts that led to the approval of the Law, a Law that is more restrictive than what is established in Roe. Moreover, the Popular Party – through fifty of its Deputies in Congress – filed an appeal for unconstitutionality against several of its most relevant provisions, however, although it governed for almost seven years, the first four with an absolute majority, it did not repeal or reform –More than in a non-crucial aspect, although not irrelevant either, consisting of requiring the authorization of parents for the abortion of minors- that Law, as it could do it. Let us remember that a draft prepared by the Ministry of Justice, when the portfolio was occupied by Alberto Ruiz Gallardón, was never processed in the Council of Ministers and, apparently, ended up causing the resignation of the Minister.

Therefore, if the Spanish Constitutional Court considers the argumentation of the Supreme Court of the United States adequate, then it should ratify the constitutionality of the Law. I end, with an additional and orthogonal reflection to what has been said so far. ‘Scotus’ is also the name, in English, of the great medieval philosopher, Duns Scotus, the doctor subtilis. Scotus, like many, for example Thomas Aquinas, thought that the human soul is not breathed by God into human fetuses at the moment of conception, but a few weeks later -usually between six and seven weeks-, it was a common doctrine of the Catholic thinkers of the time. A doctrine, therefore, that did not consider that the beginning of human life, of the person, coincides with that of conception. A doctrine that Dante picked up, like so many others, in the Comedyin canto XXV, 67-72 of the Purgatorywhich in the elegant Spanish of its translator José M. Micó sounds like this: “Open your chest to the following truth:/ when the fetus has a perfect brain/, God, prime mover,/ happy with the beauty of the nature, / satisfied he breathes a new spirit / full of vigor and virtues”.