Because I said so! Abortion as a (controversial) fundamental right in the Spanish Constitutional Court

Abstract

Abstract: Because I said so! Abortion as a (controversial) fundamental right in the Spanish Constitutional Court – The present essay aims at analysing the regulation of abortion in Spain, considering both the laws of 1985 and 2010 and the role played by the Constitutional Court (CC). Special attention will be paid to the judgment STC 44/2023, in which the CC not only rejected the doubts of constitutionality of the 2010 law, but also declared that abortion must be considered as a fundamental right enshrined in the Constitution. In doing so, the CC engaged in judicial activism, going beyond its “limited” functions, curtailing the lawmaker’s role and creating ex novo a constitutional right.

Keywords: Abortion; Constitution; Fundamental rights; Judicial self-restraint; Spanish Constitutional Court.