Primary care physicians do not have the right to refuse to give women medical advice about abortions if their moral or religious beliefs go against the practice, the Andalusia High Court has ruled.
In handing down the decision, the court overturned a ruling by a Málaga judge who said a doctor had a right to refuse to give any type of advice or to recommend a specialist in abortion cases if it went against their beliefs.
The regional High Court said an individual's right to ideology cannot usurp current laws, most notably the 2010 Abortion Law.
The woman doctor who objected to dealing with one abortion patient argued that her right to object to abortion was legally more important than the right to life. The court concluded that objecting to abortion "is not a fundamental right."
"On the contrary, it is subject to ordinary legal regulation to which the interested person must be responsible in every case as being able to provide the same medical care before and after the abortion intervention."
Conscientious objection is a fundamental right only for military service"
The 2010 Abortion Law does give health professionals "who are directly involved" in the abortion the right to refuse to perform the procedure. At the time when the law was passed, the Health Ministry stated that this clause only covered physicians who are asked to perform the abortion itself, anesthesiologists and midwives. "In any case, health professionals must treat and attend to women before and after they have undergone the procedure," the law states.
However, a group of primary care physicians in the north of Málaga had asked for guidelines from the Andalusian Health Service concerning the advice they should impart to women who come to the office asking for information about abortions.
Their complaints were unsuccessful, and some physicians continued their fight in the administrative dispute courts, arguing that their fundamental rights must be protected. But these courts had been giving mixed responses. One court sided with Silvia Montoro, a physician and contributor to two anti-abortion associations: Right to Life and Person, Family, Society (PFS), where she serves as vice president.
The doctor based her appeal on the right to freedom of religion and belief, which is enshrined in Article 16 of the Constitution, the clause that many objectors in other fields use for their legal arguments. The Constitution only recognizes conscientious objectors to military service.
"At first, the Constitutional Court made a ruling that seemed to support any objection under Article 16, but then it corrected itself and said that conscientious objection is a fundamental right only for military service," said Augustine Ruiz Robledo, a professor of constitutional law at the University of Granada. "It would be absurd that anyone could object to what they wanted because of ideological positions."
The Andalusian government appealed that decision and the regional High Court sided with it.
Andalusian health chief María Jesús Montero of the Socialist Party applauded the ruling: "It clarifies the scope of the law, and the limits of the freedoms of conscientious objectors, bringing their rights in the same line as the rights of all citizens."