More than a merely legal dilemma

A conservative justice should consider recusing himself from the abortion appeal

Recently named as a justice on the Constitutional Court panel, Andrés Ollero will be in charge of wording the majority opinion on the appeal presented by the Popular Party (PP) against the abortion law passed in 2010. Certain judges’ associations, women’s groups and political parties, such as the Socialists (whose government promoted the reform), have expressed their desire that Ollero should recuse himself from the debate to avoid the taint of partiality in view of his reiterated public pronouncements — not only against that law but also against abortion in general.

There is a dilemma here, which resists any attempt at simplification. On the one hand, a plurality of opinions is what a collegiate body such as the Constitutional Court is all about. Would a justice who has spoken out in favor of the reform also have to recuse himself for not being sufficiently impartial? Ollero was voted in by parliament — after a pact was struck by the two major parties — which considered him to be an ideal candidate, despite the fact that the appeal against the abortion law was already firmly on the court’s agenda. It would have been logical to ask questions about the desirability of his appointment then and not now.

And yet, on the other hand, there are some singular aspects to this case that cannot be ignored. Ollero was a PP deputy until 2003. Those who asked for (and got) the withdrawal of Justice Pérez Tremps — on the basis that he had written a study on a matter that would later become part of an appeal against the Catalan autonomy statute — should surely be the first to request that someone who has been a representative of the party presenting the appeal should recuse himself.

Public support

A majority of Spaniards (75 percent) agree with a woman’s freedom to decide on whether to terminate her pregnancy, but they are divided on what the system governing abortion should be: 47 percent are in favor of a time-limit law, such as that passed in 2010 (which allows procedures up to the 14th week with no need for justification), while 43 percent support abortion under certain conditions, such as those laid out in the 1985 law. It is only natural that such a division should occur among judges, but in their professional decisions they should operate using only juridical criteria. If they feel that their own ideas or beliefs impede this, they should withdraw from the case. Taking the matter of impartiality to extremes, it is possible that there would not be enough competent magistrates who had never expressed their views on such controversial matters.

In the case of Ollero, whose aggressive tone can only strengthen the suspicion of partiality on this issue, it would perhaps be the best thing to allow him to be involved in the debate, in the interests of plurality, but remove from him the responsibility of wording the ruling, a task that requires an ability to listen to differing points of view.

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