Abortion Laws in Spain, Know Your Rights

When the United States Supreme Court overturned the 1973 decision Roe v. Wade—which for the past 50 years has guaranteed women in that country the legal right to obtain an abortion—it produced shockwaves both in the U.S. and around the Western world. The ruling was exceptional in that it was a complete reversal of the court’s own legal precedent; a precedent which was supported by other Supreme Court decisions over the subsequent decades.

The removal of federal protection of access to legal abortion means that the legality of and access to this medical procedure can be determined by each individual state government; according to the Guttmacher Institute, 26 states are now certain or likely to severely restrict or completely ban abortion. Thirteen of these states already had legislation in place known as “trigger laws,” which automatically went into effect when Roe was overturned.

This momentous decision by the court has caused both American expats and citizens of other countries to wonder about the legal options that exist for the country they live in, should terminating a pregnancy be necessary.

In Spain, the law regarding abortion was updated in May 2022.

Spanish Abortion Law (1985-2021)

Spanish law technically decriminalized abortion in 1985, but only allowing the procedure in three specific circumstances: in the case of rape (within the first 12 weeks); if the fetus was likely to exhibit severe mental or physical birth defects (within the first 22 weeks); if it was necessary to protect the physical or mental health of the mother (no limit on gestation period).

In 2010, the law was expanded when the Organic Law 2/2010 on Sexual and Reproductive Health and Voluntary Interruption of Pregnancy was passed. The most major change in these new regulations allowed for any woman to seek abortion within the first 14 weeks of her pregnancy, free of charge and for whatever reason, providing the woman has been informed of her rights and the availability of public maternity aid. She then had to wait for three days in order to reflect on her decision before taking the final step.

The allowable term to seek an abortion for medical reasons was extended to 22 weeks. Legitimate medical reasons included a serious risk to the physical or mental health of the mother; if the fetus shows signs of severe abnormality or defect; if a serious and incurable disease was detected in the fetus, or if the fetus presented signs of anomalies incompatible with life. A doctor’s consent was required to terminate a pregnancy under these circumstances.

The 2010 version of the law also specified that minors aged 16 and 17 could request an abortion according to the same guidelines as an adult (18 or older); however, while the entirety of the decision-making power rested in their hands, at least one of her parents had to be informed unless the minor “alleged that this would cause serious conflict, manifested in danger of domestic violence, threats, coercion, mistreatment, uprooting or abandonment.”

The law also established a set of guidelines protecting women’s privacy when seeking an abortion and guaranteeing them access to health care.

Obstacles to Getting an Abortion in Spain

That’s what the revised version of the law guaranteed on paper, but in practice, the process of gaining access to an abortion was not that simple. In 2019, only 6% of abortions were performed in public hospitals, and only 8% in other specialized clinics in the public health network. 86% of abortions were performed in private outpatient center, most of them affiliated with the public system.

The 2010 law specified that a woman may be referred to a private medical center in exceptional circumstances when the public health services were unable to perform the procedure in time; however, this “exception” became the rule in the majority of cases.

This situation was largely blamed on another provision of the 2010 law, which gave health professionals directly involved in the procedure the right to conscientious objection—in other words, to refuse to perform an abortion as long as they specified their objection in advance and in writing. In theory, any individual’s refusal to perform or assist with an abortion should neither prevent a woman from obtaining one, nor affect the standard of her care. However, as the state also specified that this personal decision on the part of a medical professional could not be used to “discriminate” against him or her during any future hiring process, it wasn’t always possible for hospitals to guarantee that the majority of their medical staff was willing to perform the procedure to terminate a pregnancy. As a result, no official records of the names of conscientious objectors were kept—neither by Spanish medical facilities nor by the government—in order to try to prevent the possibility of this kind of “discrimination.”

This fraught dynamic between a doctor’s right to object and a woman’s right to terminate her pregnancy meant that the path to abortion in Spain was often anything but smooth. Many women in autonomous communities known for having a large percentage of conscientious objectors—Madrid, Aragón, La Mancha, Extremadura others—were referred to private clinics that were hundreds of kilometers away from their homes. Although the law guaranteed equal access “regardless of where a woman resides,” the Association of Sexual and Reproductive Rights of Catalunya found that these structural barriers and a general lack of information regarding abortion services in certain regions created major obstacles for women seeking to end their pregnancies. In fact, not a single legal abortion was performed between 1988 and 2018 in at least eight of Spain’s fifty provinces.

In other parts of Spain, the practice of certain major hospitals may have complied with the letter of the law, but not its spirit. For example, as of the writing of this article in June 2022, the Hospital de Sant Pau in Barcelona will only terminate a woman’s pregnancy if her health is in danger.

There are also conscientious objector pharmacists, who refuse to stock or sell emergency contraception, known as the “morning-after pill.” The Official Association of Pharmacists of Barcelona has stated that the professional is required to indicate to the person requesting the pill the nearest point to obtain it, without hindering that person’s ability to make sure the treatment is carried out in appropriate conditions. However, this theory did not always make it into practice. The sum of all of the above lead to calls for further legal reform.

Legal Abortion in Spain as of May 2022

In June 2021, the European Parliament issued a report (albeit over strong opposition by the far-right Catholic lobby) asking EU governments to guarantee the right to abortion and the access to health care services. The following month, the Spanish Minister of Equality, Irene Montero, announced plans to overhaul the 2010 law. The newly reformed version of the law was finally announced in May of 2022, and the changes are significant.

The previously mandatory dispensation of information and the subsequent three-day reflection period before a woman was allowed to get an abortion was eliminated. In addition, 16 and 17-year-old women may now get an abortion without informing a parent or guardian. Any woman who undergoes the procedure is also entitled to receive temporary disability payments while she recovers.

The updated version of law criminalizes the harassment of women in the vicinity of health centers—which has included everything from emotional blackmail in front of the facility by right-wing activists to physical threats—with the intent of eliminating the stigmatization and risk that women have been exposed to in the past.

The individual right to conscientious objection by medical professionals remains, though the 2022 law states that it will be regulated. As of the writing of this article, the Ministry of Equality is pushing for autonomous communities to create a (theoretically confidential) registry of conscientious objectors to providing abortion services, similar to the registry created for doctors who object to performing legal euthanasia.

The law also covers other aspects related to pregnancy and childbirth, such as paid prepartum leave in addition to maternity leave. It also commits to encouraging the research and development of male contraception via public funding, as well as the promotion of the idea “co-responsibility” by men for pregnancies. Reproductive exploitation, such as forced sterilization or forced pregnancy, was also recognized a form of violence against women as defined by the Istanbul Convention of 2011.

And for the first time, menstrual health was mentioned in Spanish law. Temporary disability payments may be paid to women with incapacitating symptoms during their periods (severe pain or migraines), and feminine hygiene products will be made available free of charge in educational centers, social service centers, and prisons, as will barrier contraceptives. The morning-after pill will be available in all pharmacies, as well as in specialized health centers and reproductive rights centers.

The number of weeks during which a woman may seek an abortion for either personal reasons (up to 14 weeks, free of charge) or medical reasons (up to 22 weeks, with the consent of a doctor) and the associated costs under the public health system have not changed under the 2022 version of the law. A public health card is required in order to access this service, though there are also private clinics in Spain where pharmacological and surgical abortions are performed for a fee.