Objeción de conciencia al aborto: comentario a la sentencia del Tribunal Constitucional 44/2023, de 9 de mayo de 2023

Abstract

The Spanish Constitutional Court in 44/2023 judgment of May 9th, 2023 conducted a constitutionality review of the restrictions on conscientious objection to abortion as established in article 19.2 of Organic Law 2/2010 on sexual and reproductive health and voluntary termination of pregnancy. This paper carries out an analytical and critical examination of the ruling by using principle of proportionality. The author differs from the Constitutional Court¿s decision as far as the legal category assigned to conscientious objection for violating articles 1.1, 14, 16.1 and 16.3 of the Constitution. However, he shares the Constitutional Court¿s reasoning on the principle of proportionality regarding the restrictions, with the partial discrepancy that conscientious objection should also extend to the medical legal duties that make up the preparatory phase, as well as the one referring to the collection and final destruction of foetal remains.

Keywords

• tribunal constitucional
• derechos fundamentales
• principio de proporcionalidad
• aborto
• objeción de conciencia