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14.

Secularization and Its Discontents:


Courts and Abortion Policy in the
United States and Spain
Adrienne Fulco

cholars who compare European and American political parties have custom-
S arily characterized the two major American political parties as distinctly non-
ideological coalitions of voters who come together every four years to nominate
and elect a president. Nicol C. Rae recently observed that “[i]n the comparative
study of political parties in twentieth century advanced democracies, the United
States has always been something of a problematic outlier owing to the absence
of organized, disciplined, and ideological mass political parties.”1 Moreover,
according to Rae, when compared with other advanced industrial democracies,
“American national parties have traditionally been decentralized, loosely
organized, and undisciplined, with party cleavages based on cultural or regional
factors rather than social class divisions.”2 But today, according to researchers
who have explored the problem of polarization in American politics since the
1980s, there is now “widespread agreement that the Democratic and Republican
parties in the electorate have become more sharply divided on ideology and
policy issues in recent decades.”3 Commentators agree that among the factors
most responsible for the sharpening of distinctions between the two parties
has been the infusion of white, Protestant, conservative, religiously motivated
voters into the Republican Party.4 Thus, not only have American political parties
become more ideologically oriented, but they have also come to resemble more
closely the European model, in which parties represent distinct religious and
secular constituencies.
The political polarization that has occurred over the course of nearly two
decades was crystallized in Patrick J. Buchanan’s speech at the 1992 Republican
National Convention. It was there, in Houston, Texas, that Buchanan famously

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announced to delegates, and a national audience, that “There is a religious war


going on in our country for the soul of America. It is a cultural war, as critical
to the kind of nation we will one day be as was the Cold War itself.”5 Praising
both Ronald Reagan and presumptive nominee George H.W. Bush for their
resolute leadership on moral issues, Buchanan went on to attack Bill Clinton,
the Democratic nominee, for promoting an agenda that did not reflect “the
Judeo-Christian values and beliefs upon which this nation was built.”6 In
addition, Buchanan specifically faulted Clinton and the Democratic Party for
their support of abortion rights at their own party’s July nominating convention,
held in New York City:
At…[the] top [of their agenda] is unrestricted abortion on demand.
When the Irish-Catholic governor of Pennsylvania, Robert Casey,
asked to say a few words on behalf of the 25 million unborn children
destroyed since Roe v Wade [sic], he was told there was no place for
him at the podium of Bill Clinton’s convention, no room at the inn.7
Buchanan’s praise for George H.W. Bush and Reagan is especially noteworthy
because both candidates shifted their positions on abortion from pro-choice to
pro-life after they decided to run for president.8
While a full discussion of the myriad ways in which religion has shaped
intra-party competition in America over the past four decades is beyond the
scope of this paper, there is little doubt that the Republican Party has become
the party of religion, and that religiously determined issues have come to play
an increasingly important role in electoral politics. Among those issues, which
include gay rights, prayer in public schools, and the teaching of evolution, the
most important by far is abortion. As Geoffrey Layman puts it, “Abortion is
the defining issue in contemporary cultural and moral politics…[and] the issue
that has been most central to the cultural debate both within and between the
parties.”9 This development has had profound consequences not only for the
electoral process but also for appointments to the U.S. Supreme Court, the arena
in which battles over abortion are now frequently waged.
During the 35 years since Roe v. Wade was decided,10 the abortion issue has
shaped American electoral politics, and although abortion remains legal in the
United States, pro-life groups, often associated with the Republican Party, have
worked tirelessly to overturn the landmark ruling. Pro-life advocacy groups like
Focus on the Family and the National Right to Life Committee have successfully
elected legislators at both the state and federal level who have passed myriad laws
that restrict a woman’s right to terminate a pregnancy. At the same time, these
groups have joined with other Christian conservatives to help elect presidential
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candidates like George W. Bush, who vowed to appoint “strict constructionist”


judges to the Supreme Court, understood to mean judges committed to
overturning Roe v. Wade. Given the crucial role the Supreme Court has played in
determining abortion policy in the United States, it is useful to understand how
organized interest groups, which exert influence within the Republican Party,
have framed the abortion question in religious terms, so that a woman’s right to
choose abortion today is less secure than it was even a decade ago.
Since the 1980s, abortion reform has also occurred throughout most of
Western Europe, and the constitutional courts of Italy and Spain, two countries
with large Catholic populations, have both rendered decisions that resulted in the
partial decriminalization of abortion in the past few decades. Moreover, both the
Italian11 and Spanish12 rulings have been viewed as legitimate, and abortion law
has remained relatively—some would say surprisingly—stable in both countries
despite ongoing efforts by Catholic politicians and clergy to revive the debate.13
It should be noted that any efforts to either expand or roll back abortion reform
in both Italy and Spain take place in the political and electoral arenas, which
are structurally and functionally separate from the constitutional courts. This
institutional arrangement, which depoliticizes the constitutional courts, is in
sharp contrast to the increasingly politicized role the U.S. Supreme Court plays
in the American electoral process.
An obvious question is how to assess the stability of the abortion rulings by
the Italian and Spanish constitutional courts, in comparison to the American
Supreme Court’s decision in Roe v. Wade, which has been subjected to ongoing
challenges for nearly four decades. A second and related question concerns the
degree to which organized pro-life groups in America, almost all of which root
their opposition to abortion in religious belief, have more successfully affected
the legal process than similar groups in either Italy or Spain. This paper is part
of a larger project that seeks to contribute to the rich and growing literature that
analyzes constitutional courts in a comparative framework. In the larger project
I will include a discussion of the role of the Constitutional Court in adjudicating
abortion law in Italy, but here I will focus my comparison on the way in which
constitutional courts function in America and Spain. My principal objectives
are to examine the role of the constitutional courts and the practices of judicial
review in each country, in order to understand why the abortion question remains
far more polarizing and contentious in the United States, where the separation of
church and state is enshrined in the Constitution, than it does in Spain, where
a large Catholic population and a history of engaged religious political parties
define the political landscape. I will conclude with a consideration of the ways
in which the American abortion controversy, which is driven in large part by
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highly active and motivated partisans who are informed by their religious beliefs,
has caused the Republican Party to frame questions in religious terms, including
questions that come before the Supreme Court.

The U.S. Supreme Court and Abortion Policy


The U.S. Supreme Court has played a central role in defining abortion policy in
America. The 1973 ruling in Roe v. Wade, which provoked controversy from the
day it was decided, struck down a Texas statute that had criminalized abortion
except in cases where the pregnant woman’s life was at stake. The statute was
challenged on the grounds that it violated a woman’s right to privacy, a right
that was recognized by the Court in a series of cases dealing with access to
contraceptives.14 Sarah Weddington, counsel for the original plaintiff in the
case, argued that just as a woman’s right to determine whether she would use
contraceptives was protected by a fundamental right to privacy, so too was her
right to determine whether she would continue, or terminate, her pregnancy. It
is significant that in the United States in 1973 there were no national abortion
laws, and all statutes criminalizing abortion had been proposed and approved
at the state level. Although some states, like New York and California, had
already begun to reform or repeal their criminal abortion statutes before Roe
was decided,15 the effect of the decision was to overturn all state statutes that
resembled the one in Texas because the Supreme Court’s rulings are not limited
to the particular parties to a case. Thus, the Court’s decision in Roe abrogated
every state law that criminalized abortion or failed to conform to the Court’s
analysis of the broad protections to which women were now entitled. It is for
this reason that the Court’s ruling was characterized as sweeping and that the
judges who joined the 7-2 majority were criticized for engaging in judicial
activism. Analysis of the historical record now reveals that Harry Blackmun (the
author of Roe), and the other six justices who joined his majority opinion, were
unaware that the decision would trigger such a strong and sustained response
from abortion opponents.16
Almost immediately after the Roe decision was announced, pro-life advocates
vowed to overturn the ruling. Over the next several years, several pro-life groups
were established, most of them closely affiliated with religious organizations. They
developed strategies aimed at passing legislation at the state level that would test
the reach of Roe by establishing restrictions on access to abortion such as parental
consent, mandatory waiting periods, and informed consent. Additionally, these
pro-life activists quickly made abortion a matter of electoral politics and publicly
announced that they would work to defeat candidates at all levels of government
who supported the Court’s decision in Roe.17 This two-pronged strategy, directed
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both toward litigating in the courts and also at electing pro-life candidates, was
successful. Over the past four decades, pro-life candidates have been elected to
both state legislatures and the U.S. Congress, and numerous statutes restricting
access to abortion have been passed.18 Although most of these anti-abortion
laws were initially found to be unconstitutional by the Supreme Court, pro-life
groups and conservative Christians became increasingly active in the Republican
Party during the 1980s, and they now constitute one of its most important
constituencies. These groups made the election of pro-life candidates a priority,
and every Republican elected to the presidency since 1980 has adopted a pro-
life position by promising to appoint judges to the Supreme Court whose record
indicates a willingness to overturn Roe. Ronald Reagan, George H.W. Bush,
and George W. Bush all campaigned on pro-life platforms, and each president
appointed justices who have indeed voted to uphold state statutes restricting
abortion. These justices include Antonin Scalia and Anthony Kennedy (Reagan
appointees); Clarence Thomas (a G.H.W. Bush appointee); and John Roberts
and Samuel Alito (G.W. Bush appointees).19 The two new Bush appointees, John
Roberts and Samuel Alito, were subjected to intense questioning about abortion
in their nationally televised Senate confirmation hearings, but ultimately even
some of the most skeptical senators, including Democrats, voted to confirm
their nominations.20
What, then, allows a vocal minority of pro-life voters to have such a
disproportionate impact on the electoral process, which in turn directly affects
judicial decision-making at the level of the U.S. Supreme Court? To answer
this question, it is necessary to examine both the structure of the Court and its
function in the American political system. The U.S. Supreme Court is the final
arbiter of constitutional disputes, and its interpretations of the Constitution are
binding at all levels of government, including the state level. On the national
level, however, the Court is one of three branches of government, and it is part of
the system of checks and balances that defines the entire American constitutional
scheme. There are no specific qualifications for judges who sit on the Supreme
Court, and their selection is based solely on the preferences of the president
who nominates them. Moreover, since the justices have lifetime tenure on the
Court, they usually serve long beyond the term of the president who appoints
them. The justices do not need to respond to public opinion, and they can be
removed from the Court only through the laborious process of impeachment,
which has been initiated only once in American history.21 From a structural
perspective, the appointment of U.S. Supreme Court justices is directly linked
to the electoral process in general and to the politics of presidential elections
in particular. Although the work of interpreting the Constitution requires
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neutrality and objectivity, appointments to the Court are, by definition,


fundamentally political. Consequently, decision-making by the justices on the
Court must be understood within the context of the highly politicized process
that determines their appointments in the first place. Since abortion was among
the most salient issues for an important constituency of the Republican party,
it is hardly surprising that Republican presidents have appointed justices to the
Supreme Court whom they considered likely to vote to uphold laws restricting
access to abortion and who would, if given the opportunity, vote to overturn the
Roe decision. In this regard, neither Antonin Scalia nor Clarence Thomas has
disappointed the presidents who appointed them.
As Jeffrey Toobin recently noted, since the death of Chief Justice Rehnquist
and the retirement of Justice O’Connor, in 2005, the newly constituted Court has
moved “with great swiftness…[and] Roberts, Alito and their allies have already
made progress on [the conservative] agenda.”22 More specifically, “the Court,
for first time in its history, upheld a categorical ban on an abortion procedure
[Gonzales v. Carhart 23].” Justice Ginsburg issued a blistering dissenting opinion
in Carhart, which she read aloud from the bench, in order to emphasize her deep
disagreement with her colleagues. Justice Ginsburg pointed out that although
the Court had invalidated a virtually identical law criminalizing “partial birth
abortion” in 2000 (Stenberg v. Carhart),24 the Court’s reversal could be explained
by the simple fact that two new justices— Roberts and Alito—had joined the
Court. It is clear that Justice O’Connor’s retirement, which resulted in the
Alito appointment, has shifted the Court’s balance in precisely the direction
the President and his conservative supporters had sought. According to Toobin,
President Bush has succeeded in transforming the Supreme Court, and what
now matters most, when divisive or controversial questions come before the
Court, “is not the quality of the arguments but the [political and ideological]
identity of the justices.”25
The U.S. Supreme Court’s structural features are closely related to its
extensive but vaguely defined powers of judicial review. The Court has the power
to decide cases as a matter of both original and appellate jurisdiction. Although
it hears relatively few cases that involve questions of original jurisdiction, which
are explicitly delineated in the Constitution and involve disputes between
states or cases involving ambassadors and diplomats, the Court’s appellate
powers are broad but only vaguely defined in Article III, §2. As is well known,
the Court’s power to determine the constitutionality of statutes and actions
of government officials developed over time, and the Court alone selects the
particular cases it will hear on appeal. Thus, it is actual litigants, who are parties
to real controversies, who bring cases to the Supreme Court, which is prohibited
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from issuing purely advisory opinions and only decides matters of law. With
respect to the Court’s rulings on abortion, all of the cases were brought on
appeal by individual litigants who claimed that a lower court had committed an
error of law, or that the application of a particular state or federal law resulted
in a constitutional violation. What is especially noteworthy in a comparative
context is that the protections afforded women seeking abortions, recognized
by the Supreme Court in Roe and all subsequent cases, originated in litigation
challenging state laws rather than in legislation initiated at either the state or
national level. Several legal scholars, including Supreme Court justice Ruth Bader
Ginsburg, have argued that the Court’s decision in Roe hindered the progress of
the abortion reform movement that had gained momentum in the states during
the late 1960s, and, as a result, the Supreme Court became the focus of anti-
abortion activists.26 Once the locus of debate over abortion shifted from the
legislative to the judicial branch of government, the courts became the arbiters
of the question. Because of the many opportunities to litigate abortion rights in
both state and federal courts, there has been no single definitive ruling on the
constitutionality of abortion law throughout the United States. Consequently,
the case-by-case approach has produced a four-decade-long struggle between
opponents and supporters of abortion. State legislatures seeking to limit or
abolish the right to abortion have passed a succession of laws that pro-choice
advocates have then been repeatedly forced to challenge in court.
Abortion opponents have succeeded in limiting the right to abortion in
two ways. First, they have lobbied effectively for state legislation that places
ever more burdensome restrictions on women. These restrictions have taken
the form of more elaborate informed consent requirements, which often
mandate information sessions about adoption and fetal development, and
stricter regulation of minors’ access to abortion through mandatory parental
notification and consent regulations.27 As discussed above, pro-life groups have
convinced legislators at both the state and federal levels to pass laws barring
a particular abortion procedure, intact dilation and extraction; one of these
laws, “The Partial Birth Abortion Act,” was found to be constitutional by the
Court in April of 2007.28 Second, since the 1980s, pro-life advocacy groups
have exercised enormous influence within the Republican Party, especially in
presidential elections. They have been able to insist that Republican presidents
appoint justices to the Supreme Court who appear to be sympathetic to their
cause. The pro-life groups have succeeded because the Supreme Court is as much
a part of the political process as any other institution of American government.
Furthermore, after the Roe decision, the judicial nomination process became
increasingly politicized and the participation of religiously affiliated groups grew
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exponentially.29 When compared to other nations’ constitutional courts, the U.S.


Supreme Court is a more integral part of the political process; consequently,
political activists are able to influence the composition of the judiciary and its
rulings, if only indirectly. The justices are therefore perceived as having ideological
preferences, and although the public holds the Court in high regard and views its
decisions as legitimate, reversals of unpopular rulings, particularly in the case of
abortion, are always a very real possibility.
The Supreme Court’s decisions, fixed in the common law tradition, are
made incrementally, and there is unlimited opportunity to revisit constitutional
questions whenever litigants successfully bring a case and the justices accept it
for appeal. As a result, the Court’s rulings on controversial issues like abortion
are always subject to legal challenge, and so long as pro-life groups actively
seek to eviscerate or overturn Roe v. Wade, the U.S.’s abortion law [singular or
plural—abortion laws?] will continue to be more unstable than in countries like
Spain, where the Constitutional Court is not subject to the demands of electoral
politics.

The Constitutional Court30 and Abortion Policy in Spain


According to legal scholar Alec Stone Sweet, all of the European constitutions
written after World War II, such as Italy and Spain’s, established “enforceable,
substantive constraints on government. These included constraints on legislative
and executive authority, in the form of human rights, the scope and content
of which go far beyond the American Bill of Rights.” In addition, “with very
few exceptions, all such constitutions provide for ‘constitutional review’ by
a ‘constitutional court’” that has “specialized jurisdiction” and is designed to
“ensure the normative superiority of constitutional law.”31 The European
constitutional courts are based on the model of judicial review developed by the
Austrian legal theorist Hans Kelsen. This approach is rooted in legal positivism
and designed to provide an alternative to the American model, which Kelsen and
subsequent legal theorists believed risked devolving into a system characterized
by a “government by judges.”32 Kelsen emphasized that judicial power must
be carefully circumscribed by the constitution, and he cautioned that the
constitution itself should not include human rights guarantees, which, he firmly
believed, invited open-ended interpretation that would undermine the legitimacy
of the judges.33 His objective was to limit the power of judicial review to the
abstract protection of the entire constitutional order.34 To achieve this goal, he
proposed that constitutional courts be authorized to review the constitutionality
of legislation passed by parliament prior to implementation and that judges be
recruited from the expert ranks of professional judges and law professors. While
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most European countries adopted the Kelsenian model for their constitutional
courts, many have deviated from his approach in one important way: they have
given courts jurisdiction over constitutional rights.35 The Spanish Constitutional
Court, Tribunal Constitucional de España, follows the Kelsenian rather than the
American model in several important respects, and its structure and function
have had significant consequences for its review of questions pertaining to
abortion. The Spanish Constitutional Court, whose authority is conferred by
the Constitution and by statute, is separate from and independent of the larger
judicial system, and is governed by its own rules. The Court has twelve elected
members—four nominated by the Congress of Deputies, four by the Senate
(by a three-fifths majority), two by the Government, and two by the Judiciary.
The judges are required to have at least fifteen years of professional practice
experience, and they are drawn from the ranks of magistrates, prosecutors,
university professors, public officials, and lawyers. They serve for nine years,
and one third of the judges are renewed or replaced at three-year intervals.36
Unlike the very partisan appointment process for Supreme Court justices in
the United States, Spanish judges are selected in a procedure that focuses on the
professional qualifications of candidates who have extensive legal experience and
have been recognized by the larger legal community. This system was deliberately
designed to make the Court politically independent, and to insulate it from the
kind of partisanship that characterizes the American model and, in the view of
Europeans, would likely undermine the legitimacy of judicial review.
The Court’s jurisdiction is clearly defined, and it possesses the power of both
abstract and concrete review. When politicians, including the prime minister,
deputies, and the president of the parliamentary bodies, among others, refer a
statute directly to the Court, it undertakes an abstract review of the constitutionality
of a particular text and renders a ruling. The Court also reviews legislation referred
to it when ordinary courts, in the process of adjudicating a concrete case, decide
to do so. Finally, the Court hears cases that are brought by individuals in a specific
controversy who raise questions of fundamental rights and have exhausted all
other appeals.37 Although originally the Spanish Constitutional Court had the
power to review legislation pertaining to issues of fundamental rights and liberties
before a statute was implemented, this power was abolished in 1985 because “[i]
t proved to be a very efficient means of parliamentary obstruction.”38 This power
of a priori review, which Belen Barreiro contends leads courts to be less cautious
than when they review a law that has already been implemented, is especially
relevant to the evolution of abortion law in Spain.
According to Celia Valiente, abortion has been punished in Spain since
medieval times, and it was criminalized in the first penal code of 1822, the
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provisions of which remained virtually unchanged until the reform movement


of the 1980s. In 1944, the Fascist government revised the penal code to punish
abortion with a prison term of six months to six years, granting exemptions only
for unmarried women.39 The one exception to the criminalization of abortion
in Spain occurred in Catalonia, where in 1936 the legislature, responding to a
strong women’s movement associated with the politically powerful anarchists,
passed a law permitting abortion for therapeutic, eugenic, or ethical reasons.40
Only when the Socialist Party (PSOE), whose ideology was informed by secular
values, came to power in 1982 did the process of reforming abortion law in
Spain begin. Although the PSOE had not campaigned on abortion in the
1970s, the issue had been raised within the party. As Valiente points out, the
abortion issue divided those members who supported broad liberalization from
those who were committed only to more limited reform.41 In the 1982 election,
the PSOE explicitly pledged to initiate the process of abortion reform, but the
party deliberately adopted an incremental approach as an electoral strategy. By
abandoning its “traditional anti-clericalism” and adopting a “more cautious
approach to the Catholic Church,”42 the PSOE broadened its appeal and won
the election with an absolute majority.
Within four months of coming to power, the Socialist Cabinet wrote a
modest proposal that reformed the Penal Code of 1944 by “legalizing therapeutic,
eugenic and ethical abortions.” This constituted a first step in the process of
liberalizing a woman’s right to abortion in Spain.43 Belen Barreiro argues that
the reason PSOE did not call for more sweeping abortion reform, or specify an
implementation plan, was because it understood that the bill would be referred
to the Court and wanted “to avoid constitutional censure.”44 Given the large
Socialist majority, the Congress of Deputies and the Senate approved the bill,
and, as expected, the principal opposition to the proposal came from the Alianza
Popular (AP), a conservative party with ties to the Catholic Church that opposed
any decriminalization of abortion. Conservatives then brought the abortion bill
to the Constitutional Court for a priori review, contending that the text was
unconstitutional.45 They grounded their argument in Article 15 of the 1978
Spanish Constitution, the relevant section of which states: “All have the right
to life and to physical and moral integrity, and may under no circumstances be
subjected to torture or to inhuman or degrading punishment or treatment.”46
The AP Deputies who referred the bill asked the Court to declare the whole bill
unconstitutional, but they also requested that certain aspects of the bill be more
clearly defined.47 Referral of the bill to the Constitutional Court delayed the
implementation process for sixteen months until April of 1985, when the judges
reached a decision.
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The Court’s ruling stated that certain provisions of the reform bill violated
Article 15 of the Constitution. The twelve members of the Court were evenly
divided, thus requiring the President of the Court to cast a second, tie-breaking
vote. It is worth noting that Richard Stith, who has written a detailed account
of the Court’s decision, points out that the votes of the justices did not split
along party lines, and five separate dissenting opinions were issued.48 Essentially,
the Court determined that “therapeutic, eugenic and ethical abortions were
considered constitutional but the precise wording of the bill was to be modified
to assure the protection of the foetus.”49 Thus, the Court achieved a balance
between a woman’s right to absolute choice to terminate a pregnancy and the
value of fetal rights. Declaring that the fetus itself did not possess rights but that
“human life is a superior constitutional value,” the Court specified the changes
that would be required in order for the bill to be deemed constitutional. In
particular, the Court stipulated that the health of a woman be defined as both
mental and physical, and specific provisions for regulating therapeutic and
eugenic abortions must be established.50
Within a week of the ruling, the Spanish government revised the bill
according to the Court’s recommendations and resubmitted it to Parliament.
Agreement was quickly reached, and during the week of debate, a poll
conducted by the Center for Sociological Research found that 75% of Spanish
respondents favored abortion under limited conditions, including 52% of those
who identified themselves as members of the conservative AP Party, most of
whose members are Catholic.51 Even the AP, which had rejected abortion reform
in 1983 and initially referred the bill to the Court, accepted the Court’s ruling
as binding and shifted its position in order to achieve a new compromise bill.
Organic Law 9, which was approved on July 5, 1985, limited abortion to cases
of rape or incest, a malformed fetus, and threats to a woman’s mental or physical
health, and provided for strict regulation. Of particular importance are the
rules governing implementation because they determine women’s access to the
procedure. In addition to the requirements that abortion be performed in public
or approved health facilities after physician approval, the law also mandates
that women give express consent, and that a physician, other than the one who
approved the procedure, direct or perform the abortion.52 A few weeks later, the
Ministry of Health issued supplementary regulations, including a controversial
“conscience clause” provision allowing physicians and other hospital personnel
to decline to perform an abortion on the basis of their religious or moral beliefs.
Additional regulatory changes have been enacted since the passage of the 1985
law that have improved access and overcome some of the original problems of
implementation. 53
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While abortion has remained a contested issue in Spain since 1985, the law
has remained remarkably stable. Celia Valiente argues that Catholic opposition
to abortion in Spain has been more moderate than in other countries and that
“[u]nlike the United States, Germany, or Ireland, the issue no longer provokes
intense conflict in the policy-making process.”54 Noteworthy in this regard is the
Constitutional Court’s January 1991 ruling, in which the Court first dismissed
a criminal case against a married couple and a friend who assisted in procuring
an abortion, and then recognized a socio-economic justification for terminating
the pregnancy. The court determined that the woman was suffering mentally
and physically; that the family could not afford another child; and it “concluded
that if the mother were forced to give birth, her right to free development of her
person would be violated.”55 Although the physician in the case was convicted,
the ruling encouraged supporters of abortion reform to again seek to amend
the Spanish penal code in order to bring it in line with the abortion policies of
other countries in the European Union.56 But, despite the fact the Spaniards
continue to support further liberalization of abortion laws, legal reform requires
parliamentary action, which, in turn, requires the kind of compromise that
tends to maintain the status quo.57 Furthermore, in Spain as in other Western
European countries, abortion is understood to be divisive, and “political elites
will prevent the issue from gaining agenda status, as within parties there is often
no consensus on the issue.”58 Because of the need to achieve reform through
the political process rather than through litigation, the Constitutional Court is
embroiled in a political struggle.

Conclusions
In her analysis of the 1985 Spanish Constitutional Court ruling, Belen Barreiro
points out that the PSOE anticipated that the bill would be referred to the
Constitutional Court for review, and that this caused the lawmakers to draft a
modest reform proposal in order to avoid censure. Arguing convincingly, she
observes: “A declaration of unconstitutionality by the Court would have blocked
the possibility of future reform, while the constitutionality of a moderate bill
would permit further liberalization in the future.”59 The very real possibility of
a referral to the Court inspired the PSOE legislators to refrain from writing the
more liberal bill sought by strong supporters of abortion within the party. Barreiro
further maintains that the Court’s ruling adopted a compromise position that
included policy recommendations important to both supporters and opponents
of the bill. She explains why the Court was able to achieve this outcome by
noting that “[t]his position could easily be taken by an institution that did not
need to respond to any particular interests…Non-majoritarian institutions have
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the freedom to defend shared values which, paradoxically, parties are sometimes
unable to maintain.”60 It is clear that the Spanish Constitutional Court’s decision,
which the government and individual citizens regarded as legitimate, helped to
ease the conflict around the abortion issue. Compared with the four-decade-long
history of the U.S. Supreme Court’s treatment of abortion issues, the Spanish
result seems remarkable, particularly from an American perspective. Moreover,
although there have been attempts to challenge the original ruling, abortion law
in Spain has remained stable.
What accounts for the stability of the Court’s abortion decision? While
there are many factors to take into account when comparing two very different
constitutional courts, certain distinctions do seem to be especially relevant. The
first involves the selection process for judges. Of crucial importance: the method
of selecting judges to sit on the Spanish Constitutional Court is divorced from
both the electoral system and the ordinary partisan politics that defines and shapes
the American nomination process. Unlike their American counterparts, justices
on the Spanish Constitutional Court are highly respected, seasoned professionals
who are not selected on the basis of their partisan affiliations, and who, therefore,
are more fully insulated from the dynamics of partisan politics. As a result, when
called upon, they were able to render a decision on the volatile abortion question
that was moderate in tone, specific in its recommendations, and, as the poll
results cited above confirm, in tune with Spanish public opinion. The second
noteworthy factor is related to the degree to which the public, government,
activists, and political parties regard the rulings of the Court as legitimate and
impartial. Despite the fact that some activists outside of government were
disappointed with the ruling, the Spanish parliamentary parties regarded the
Court’s decision as fully legitimate, in part because the decision acknowledged
the arguments of both sides and issued recommendations that all parties could
accept.
So, when the government returned to the drawing board to recast the
abortion reform bill, all parties felt motivated to produce a revised version that
would meet the constitutional requirements stipulated by the Court. It appears
that the referral process itself facilitated such an outcome because the Court’s
opinion promoted moderation and consensus. In effect, the Constitutional
Court’s specific jurisdiction and clearly defined powers appear to allow it to play
a constructive role in policy-making, even in such a contentious area as abortion.
In this regard, the legitimacy of the Spanish Court is of special importance.
Although the Catholic Church was adamantly opposed to abortion reform,
because the Court is a competing, secular, authoritative voice, especially on
constitutional matters, the Church could not prevent reform of the penal code
208 SECULARISM, WOMEN & THE STATE: THE MEDITERRANEAN WORLD IN THE 21ST CENTURY

once the matter had been referred for review. Whereas in the United States the
Supreme Court’s abortion decisions have often amplified conflict, partisanship,
and the hardening of positions, the Spanish Constitutional Court’s ruling allowed
all parties to reach a compromise. Consequently, the Constitutional Court was
in a position not only to facilitate moderate compromises, but also to soften the
clash between secular and religious partisans.61
The U.S. Supreme Court occupies a similarly authoritative position, but
the selection of justices in recent years has been influenced by religious activists,
especially opponents of abortion, and as a result, questions of religious faith
have surfaced in the confirmation hearings of most nominees, including John
Roberts and Samuel Alito, the newest members of the Supreme Court. As many
commentators have emphasized, for the first time in history five of the nine justices
currently sitting on the U.S. Supreme Court—a majority—are Catholics whose
church doctrine is demonstrably opposed to abortion. Much current research
demonstrates that “there has been increasing polarization of the electorate along
religious lines,” especially over the last three election cycles;62 thus, the question
of abortion, so important to religious partisans, has thoroughly politicized the
judicial appointment process. Each resignation from the Court prompts intense
activity among interest groups, and abortion eclipses all other issues with respect
to the nominees’ qualifications and the public’s understanding of an individual
justice’s voting records. Indeed, the president’s power to nominate justices has
become a central issue in presidential elections; a significant number of votes
now appear to turn on the expectation that the Republican candidate will
appoint pro-life justices and the Democrat, pro-choice ones. Thus, the partisan
nature of the appointment and confirmation process means that the Supreme
Court is continually at the center of a very divisive debate and, unlike its Spanish
counterpart, its decisions exacerbate rather than diminish differences between
those who support a woman’s right to choose an abortion and those who seek to
limit or eliminate access to abortion. Ironically, the question of justices’ religious
preferences is more pertinent today in the United States than it is in Spain, and
the divisions between the two major American political parties increasingly reflect
the religious and secular leanings of their supporters. In this respect, the ongoing
controversy over abortion being fought out in the judicial arena is a barometer
of the deepening disagreements among religiously motivated Republicans and
secularist Democrats, and American political parties now appear to be more
like European parties that have traditionally split along church-state lines. But
whereas in Spain that traditional split has been softened by the creation of a
religiously neutral zone of constitutional adjudication, in the United States that
zone has been shrinking.
14. COURTS AND ABORTION POLICY IN THE UNITED STATES AND SPAIN 209

ENDNOTES
1. Nicol C. Rae, “Be Careful What You Wish For: The Rise of Responsible Parties in
American National Politics,” Annual Review of Political Science 10 (2007): 10, 170,
http://arjournals.annualreviews.org (accessed 8/6/08).
2. Nicol C. Rae, “Be Careful What You Wish For: The Rise of Responsible Parties in
American National Politics,” 172.
3. Geoffrey C. Layman, Thomas M. Carsey, and Juliana Menasce Horowitz, “Party
Polarization in American Politics: Characteristics, Causes, and Consequences,”
Annual Review of Political Science 9 (2006): 89, http://arjournals.annualreviews.org
(accessed 8/6/08).
4. John C. Green has provided persuasive empirical support for this trend in his recent
book, The Faith Factor (Westport, CT: Praeger Publishers, 2007).
5. Patrick J. Buchanan, Republican National Convention Speech, Houston, Texas,
1992. http://www.buchanan.org/pa-92-0817-rcn.html (accessed 8/6/08).
6. Ibid.
7. Ibid.
8. As Governor of California, Reagan signed into law the Therapeutic Abortion Act,
which liberalized abortion, in June of 1967.
9. Geoffrey C. Layman, “‘Culture Wars’ in the American Party System: Religious and
Cultural Change among Partisan Activists Since 1972,” American Politics Research,
27, no. 1 (1999): 103. http://apr.sagepub.com (accessed 8/6/08).
10. Roe v. Wade, 410 U.S. 113 (1973).
11. The Italian Constitutional Court issued important rulings in 1971 and 1975.
12. The Spanish Constitutional Court ruled on the abortion question in 1985 and
1991.
13. Prior to the March 2008 parliamentary elections, the Spanish Conference of Bishops
urged Catholic voters to “defend traditional values and elect leaders ‘responsibly.’”
[Tracy Wilkinson, “Catholic Church Wades into Political Fray in Spain; Bishops
Remind Voters of Their Duty to Uphold Traditional Values in Elections. Socialist
Party Officials Protest,” Los Angeles Times, March 5, 2008. http://articles.latimes.
com/2008/mar/05/world/fg-spain5 (accessed 8/6/08)].
14. Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438
(1972).
15. Between 1967 and 1973, one-third of the states, beginning with Colorado, had
begun to decriminalize abortion and liberalize the laws. See: J. Lewis and Jon O.
Shimabukuro, “Abortion Law Development: A Brief Overview,” Almanac of Policy
Issues. http://www.policyalmanac.org/culture/archive/crs_abortion_overview.shtml
(accessed 6/15/07).
210 SECULARISM, WOMEN & THE STATE: THE MEDITERRANEAN WORLD IN THE 21ST CENTURY

16. In her recent book, Becoming Justice Blackmun (New York: Times Books, 2005),
Linda Greenhouse provides an excellent account of both the process by which Jus-
tice Blackmun developed his arguments in Roe and his efforts to persuade his fellow
justices to join the opinion. What is striking about her discussion is Blackmun’s
confidence that his constitutional analysis was correct.
17. Two illuminating accounts of the work of pro-life groups in response to Roe are
Kristin Luker, Abortion and the Politics of Motherhood (1984) and Barbara Hinkson
Craig and David M. O’Brien, Abortion and American Politics (1993).
18. Laws restricting abortion were passed in many states, including Ohio, Missouri,
and Pennsylvania, which in turn provoked challenges from pro-choice litigants.
Congress passed several laws restricting abortion, including the Hyde Amendment
(1976) and the Partial Birth Abortion Ban Act (Public Law 108-105, 2003) which
makes illegal a particular abortion procedure.
19. The one exception is Justice David Souter, a G.H.W. Bush appointee, who, over
time, has evolved into a moderate-to-liberal leaning member of the court, and who
tends to uphold abortion rights.
20. The Senate vote for Roberts was 78-22 (September 29, 2005). United States
Senate, U.S. Senate Roll Call Votes 109th Congress, 1st Session, http://www.
senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=
09&session=1&vote=00245 (accessed 6/15/07).
The Senate vote for Alito was 58-42 (January 31, 2006). United States Senate, U.S.
Senate Roll Call Votes 109th Congress, 2nd Session, http://www.senate.gov/legisla-
tive/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=109&session=2&vote=00
002 (accessed 6/15/07).
21. Justice Samuel Chase was impeached in 1804 but acquitted in his Senate trial
in 1805. See Bruce A. Ragsdale, The Sedition Act Trials, Federal Judicial Center,
http://www.fjc.gov/history/sedition.nsf/autoframe?openForm&header=/history/s
(6/11/07).
22. Jeffrey Toobin, “Five to Four,” The New Yorker, June 23, 2007, 35.
23. Gonzales v. Carhart, http://en.wikipedia.org/wiki/Case_citation550_U.S._2007.
24. Stenberg, Attorney General of Nebraska, et al. v. Carhart, 530 U.S. 914 (2000).
25. Toobin, “Five to Four,” 35-36.
26. In addition, Justice Ginsburg has argued for years that the Roe decision would have
been more persuasive had it been grounded in a constitutional argument about
equality, which finds explicit expression in the Constitution, rather than in the right
to privacy, which is derived from other explicit constitutional guarantees. In a 1993
lecture, Justice Ginsburg reiterated her claim: “Doctrinal limbs too swiftly shaped,
experience teaches, may prove unstable.” See Linda Greenhouse, “Judge Ginsburg
Still Voices Strong Doubts on Rationale Behind Roe v. Wade Ruling, ” New York
Times, Nov. 29, 2005. http://www.nytimes.com/2005/11/29/politics/ginsburg.
html (accessed 5/19/07).
14. COURTS AND ABORTION POLICY IN THE UNITED STATES AND SPAIN 211

27. According to the Center for Reproductive Rights: “Forty-four states have adopted
laws requiring a young woman to obtain the consent of or notify one or both par-
ents prior to an abortion, but in nine of those states, the laws are enjoined or not
enforced. Most of the statutes apply to young women under 18 and provide for a
court bypass procedure should a young woman be unable to involve her parents.
Most measures include exceptions for medical emergencies.” Center for Reproduc-
tive Rights. “Restrictions on Young Women’s Access to Abortion Services.” Domestic
Factsheets. http://www.reproductiverights.org/pub_fac_restrictions.html (accessed
5/16/07).
28. Gonzales v. Carhart, 550 U.S._(2007).
29. See Richard Davis, Electing Justice: Fixing the Supreme Court Nomination Process
(New York: Oxford University Press, 2005).
30. Tribunal Constitucional de España.
31. Alec Stone Sweet, “Why Europe Rejected American Judicial Review: And Why It
May Not Matter,” Michigan Law Review, 101, no. 8, (2003): 2745. http://jstor.org
(accessed 6/22/07).
32. Sweet, “Why Europe Rejected American Judicial Review: And Why It May Not
Matter,” 2766.
33. Sweet, 2768.
34. Luis López Guerra, “The Function of Constitutional Courts,” (summary of paper
presented at Association of American Law Schools Conference on Constitutional
Law, Washington, D. C. June 5-8, 2002), Association of American Law Schools,
http://www.aals.org/profdev/constitutional/lopezguerra.html (accessed 6/1/07).
35. Sweet, 2768. He argues: “Since World War II, Europe has experienced a rights revo-
lution, a hugely important movement to codify human rights at both the national
and supranational levels.”
36. Olga Cabrere, “A Guide to the Spanish Legal System.” Law and Technology Re-
sources for Legal Professionals.http://www.llrx.com/node/1287/print#court (accessed
6/9/07).
37. Belen Barreiro, “Judicial Review and Political Empowerment: Abortion and Spain,”
West European Politics. 21, no. 4 (1998): 147-162. http://find.galegrouop.com.itx.
infomark (accessed 5/19/07).
38. Belen Barreiro, “Judicial Review and Political Empowerment: Abortion and Spain.”
The author argues that the a priori review was used in Parliament by forces opposed
to the Socialist “absolute majority” on a variety of issues, including abortion, when
the party came to power in 1982.
39. Celia Valiente, “Gendering the Abortion Debate in Spain,” in Abortion Politics,
Women’s Movements and the Democratic State, ed. Dorothy McBride Stetson (N.Y.:
Oxford University Press, 2001), 229.
40. Rishona Fleishman, “The Battle Against Reproductive Rights: The Impact of the
Catholic Church on Abortion Law in both International and Domestic Arenas,”
Emory International Law Review, 14 (2000): 293. http://lexis-nexis.com/universe
(accessed 5/5/07).
212 SECULARISM, WOMEN & THE STATE: THE MEDITERRANEAN WORLD IN THE 21ST CENTURY

41. Celia Valiente, “Gendering the Abortion Debate in Spain,” 232.


42. Belen Barreiro, ”Judicial review and political empowerment: Abortion in Spain.”
43. Ibid.
44. Ibid.
45. Celia Valiente, “Gendering the Abortion Debate in Spain,” 233-234.
46. Constitution of Spain ch. 2, sec. 1, art. XV. Legislationline. http://www.legislation-
line.org/legislation.php?tid=160&lid=127 (accessed 6/3/07). This provision of the
Constitution was originally included in order to outlaw capital punishment.
47. Barreiro, “Judicial Review and Political Empowerment.”
48. Richard Stith, “New Constitutional and Penal Authority in Spanish Abortion Law,”
American Journal of Comparative Law, no. 3 (1987): 517, http://jstor.org (accessed
5/5/07).
49. Barreiro. “Judicial Review and Political Empowerment.”
50. Ibid.
51. Edward Schumacher, “Spanish Parties Agree to Vote for Law Permitting Some Abor-
tions, New York Times, April 20, 1985. http://query.nytimes.com/gst/fullpage.html?
sec=health&res=9B01E6DE1E38F933A15757C0A963948260&scp=1&sq=edwar
d%20schumacher%20spanish%20parties&st=cse.
52. United Nations, Population Policy Data Bank, Population Division of the Depart-
ment of Economic and Social Affairs of the United Nations Secretariat. http://www.
un.org/esa/population/publications/abortion/doc/spain.doc (accessed 5/18/07).
53. Celia Valiente, “Gendering the Abortion Debate in Spain,” 238-41.
54. Valiente, “Gendering the Abortion Debate in Spain,” 230.
55. Reed Boland, “Selected Legal Developments in Reproductive Health in 1991,”
Family Planning Perspectives, 24, no. 4 (1992): 179, http://www.jstor.org.
56. Reed Boland, “Selected Legal Developments in Reproductive Health in 1991,”
180.
57. Joyce Outshoorn, “The Stability of Compromise: Abortion Politics in Western Eu-
rope,” in Abortion Politics in Cross-Cultural Perspective, ed. Marianne Githens and
Dorothy McBride Stetson (New York: Routledge, 1996), 154.
58. Ibid.
59. Belen Barreiro, “Judicial Review and Political Empowerment.”
60. Ibid.
61. I am indebted to Professor Mark Silk, Director of the Program on Public Values at
Trinity College, for this astute insight. I would also like to thank Professor Silk for
his thoughtful comments on earlier drafts of this paper.
62. Mark Silk and John C. Green, “The GOP’s Religion Problem,” Religion in the News,
9, no. 3 (Winter 2007), http://caribou.cc.trincoll.edu/depts_csrpl/RINVol9No3/
GOP’sReligionProblem.htm (accessed 8/10/08).