Constitutional expert lawyer Flavio Darío Espinal takes an in-depth look into the Constitution and defends the constitutionality of the three grounds for abortion. The exceptions to the absolute ban is the most heated debate as Congress tackles amendments to modernize the Penal Code. In the bill being read in the Chamber of Deputies, the exception when the mother of the child is in danger, is being included.
In his opinion piece in Diario Libre, Espinal says that while it is true that the Constitution Art. 37 states that life is inviolable, there are other clauses in the Constitution that sustain the appeals for including the three grounds, as most countries around the world have done. Article 37 of the Constitution states: “Right to Life. The right to life is inviolable from conception to death. The death penalty shall not be established, decreed or applied in any case.”
Espinal guides his readers to focus on the other articles in the Constitution that provide the base for the passing of the three grounds for abortion. In Chapter III on the Principles for the Application and Interpretation of the Fundamental Rights and Guarantees, Art. 74 states: “Public authorities shall interpret and apply the rules on fundamental rights and guarantees in a manner most favorable to the individual and, in a case of conflicting fundamental rights, shall attempt to reconcile the interested protected by this Constitution.”
Espinal also mentions Art. 38 on Human Dignity. The article states: “The state is founded upon respect for the dignity of the individual and is organized for the real and effective protection of the fundamental rights inherent to every person. The dignity of human beings is sacred, innate and inviolable. Public authorities have a fundamental duty to respect and protect human dignity.”
And Art. 42 on Right to Personal Integrity states: “All persons have the right to have their physical, psychological and moral integrity respected and to live without violence. The state shall protect all persons from any threat, risk or violation thereof.”
Espinal states: “To leave a woman without the option of deciding whether or not to terminate a pregnancy when, for example, the pregnancy is the result of rape, which always involves violence, abuse and physical, moral and emotional dispossession, is manifestly contrary to the fundamental rights to dignity, integrity and to live free from violence in accordance with articles 38 and 42 of the Constitution. Something similar applies to cases in which pregnancy is the result of incest in which, as often happens, a girl or adolescent is impregnated by a close relative (father, brother, uncle) who also places her in a situation of dispossession of her dignity and physical, moral and emotional integrity through violence, abuse of power, deception and intimidation. If situations such as these do not lead the constitutional interpreter to an unavoidable exercise of weighing rights, then we would have to conclude that we do not have in the country a ‘living Constitution’ but rather a text whose provisions are applied in a mechanical manner without taking into account the broad legal context of the Constitution itself and the reality in which it is inserted.”
He points to the relevance of distancing state and religion. He stresses that where there is political, ideological and religious plurality, the state can then fulfill its legitimate secular objectives. He called the churches to carry out their crucial role to guide and accompany their followers, especially in situations such as those the three grounds for abortion cover where women need to make difficult decisions based on their values and beliefs.
Espinal was legal advisor to former President Danilo Medina and is a former Dominican ambassador to the United States and the Organization of American States.
Read more in Spanish:
Diario Libre https://www.diariolibre.com/opinion/en-directo/la-constitucionalidad-de-las-tres-causales-AG25327043
31 March 2021