Recent statements by Justice Minister Alberto Ruiz Gallardón have fueled speculation that he is preparing the most restrictive abortion law in the history of democratic Spain. But private comments by ministry officials who are completing the draft legislation suggest that this could, in fact, be one of the most lenient abortion laws in Europe. The key to this apparent contradiction lies in what is being said and what is not being said.
The first thing that Gallardón, of the conservative Popular Party (PP), said is that the fetus will have rights throughout the entire pregnancy, on the basis of a 1985 decision by the Constitutional Court establishing that both mother and fetus have rights. What this means is that the new legislation will eliminate the current right for pregnant women to have an abortion on demand, no questions asked, until week 14, a choice that was encoded into law in 2010 under the previous Socialist administration to bring Spain in line with other European countries. This means a return to abortion as a crime, apart from a few situations considered exceptions to the rule, for which women will have to prove they are eligible.
The second thing that Ruiz-Gallardón said is that pregnant 16- and 17-year-olds will once again require their parents' consent before they can get an abortion, a rule that had been struck down by the 2010 law.
The third and most controversial thing that the minister said is that fetus malformation or disability will no longer be a valid reason to have an abortion, as it had always been in the past, because in his opinion this is akin to discriminating against disabled people.
The law that Ruiz-Gallardón is preparing could be even more permissive than the current one
These were Ruiz-Gallardón's public statements. Then there are the things he never said outright but were printed anyway, quoting Ministry sources; this information, which was reported by several media outlets, including EL PAÍS, has not been contradicted by the Ministry so far. The gist of it is that the new law might reduce the cases where an abortion is justified (rape, fetus malformation, physical or psychological risk for the mother) to just one: psychological damage. In this case, the woman would have the final say in the decision to have an abortion or not, after speaking with doctors, being informed about the alternatives and going through a "period of reflection." That is to say, even though fetus malformation per se would disappear as a valid cause for abortion, a woman carrying a fetus with health problems could allege that having the child would cause her psychological damage, and get her abortion.
This formula would allow Ruiz-Gallardón to bring together both rights: those of the mother and those of the fetus. The pregnant woman would not have a unilateral right to an abortion, but ultimately her decision would be paramount.
If this is truly the law that Ruiz-Gallardón is preparing, in a way it would even more permissive than the current one, which only permits abortion on demand in the first 14 weeks; after that, it is only legal until week 22 if there is fetus malformation, and after that not at all (save for risk of death).
The only way the new law could be stricter is if it established an outside date for abortion of 14 weeks or less, after which there would be no more acceptable causes. In Spain, 90 percent of abortions are carried out in the first 12 weeks of pregnancy, according to figures from the National Statistics Institute.