The President of the Republic returned to Parliament, for review, Parliamentary Bill No. 6/XIII, relative to the decriminalization of abortion.
Following is the full text of the Message that, concerning the above issue, the President of the Republic addressed to Parliament:
Having received, on 4 January 2016, for enactment as law, Parliamentary Bill No. 6/XIII, which «Repeals Laws No. 134/2015, dated 7 September, relative to the payment of mitigating rates in cases of abortion, and No. 136/2015, dated 7 September (first alteration to Law No. 16/2007, dated 17 April, relative to the decriminalization of abortion)» I have decided, in the terms of Article No. 136 of the Constitution, not to enact that bill based upon the following premises:
1 – The Bill in question repeals two laws approved in 2015 and reconstitutes rules changed by those laws.
2 – In particular, the Bill repeals Law No. 136/2015, dated 7 September, which establishes the provision of information to the pregnant woman concerning social aid, on the removal of difficulties in the access to her rights and on the value of life and on responsible maternity and paternity. This law equally establishes obligatory psychological follow up by a qualified member of the social services during the period of reflexion.
3 – When Law No 16/2007, dated 17 April – covering the decriminalization of abortion – now altered, was enacted, I underlined, in the Message I then sent to Parliament, that: “The availability of the above referred information is somewhat that not only does not contend with a woman’s freedom of decision, but is, on the contrary, an extremely relevant or even essential component, for such a decision to be taken, whatever its sense, in the most adequate conditions – either for the preservation of her future psychological well-being, or for a correct pondering as to the existing conflicting interests, or even, ultimately, as to the irreparable consequences of the act itself.
4 – Enactment of Law No 16/2007, dated 17 April, thus occurred precisely as referred in that Message, presupposing that the decriminalization of abortion would be accompanied by regulations that would guarantee the provision of sufficient and necessary information for a conscientious, free and responsible decision to be taken, in the reinforcement of the woman’s autonomy, as well as its following up at a time prior to the decision on the abortion.
5 – Anyway, the Constitutional Court, in its judgements No, 288/98 and No. 617/2006 emphasized, in the following terms, the importance that lay in the counselling factor: “The constitutional admissibility of recognizing the decriminalization of the abortion carried out, at the woman’s option, during the first ten weeks of pregnancy, in a legally authorized health institution, or, at least, the renunciation to the use of legal penalties, in such circumstances, cannot however be interpreted as accepting that the Fundamental Law consecrates abortion as a method of family planning or birth control. This is opposed by the understanding that intrauterine human life is a juridically protected asset, independently from the charter given to such protection. As such, deemed particularly important, since these may become much more effective than penal repression in itself, are measures common to general European legislation on the issue, such as obligatory prior counselling, in which a woman can be provided with all necessary information covering social rights and the aids from which she could benefit by going ahead with the pregnancy, as well as establishing a period of reflexion between the time of such counselling and the abortion, in order to ensure that the woman took the decision of her own free will, properly informed and not in haste, and thus avoiding an abortion caused by sudden despair”.
6 – Such as referred by the Constitutional Court, the prevision of obligatory counselling prior to the abortion decision is common to juridical systems such as ours. In Germany, for instance, counselling followed by a minimum three day reflexion period is obligatory. Spanish legislation also imposes the duty of informing the woman on the social rights of maternity.
7 – The main objective of the changes approved in Law No. 136/2015 was the right of the pregnant woman to information, as well as establishing obligatory specialized following up during the reflexion period.
8 – Changes introduced in the above mentioned Law No. 136/2015 are thus in line with the concerns I expressed in the Message I addressed Parliament on 10 April 2007, and are equally in accordance with the provisions of juridical systems such as ours.
9 – The repeal now considered, reconstituting the rules previously in force, which foresaw counselling, diminishes the rights to information and also suppresses obligatory specialized following up during the reflexion period.
10 – These changes are considered as a regression in the defence of the existing several values and interests, since they reduce the information provided throughout the pregnant woman’s decision process, such information being, as I stated in the referred Message, as fully encompassing as possible and as a means to reinforce the woman’s freedom of decision. On the other hand, the recent legislative alteration, carried out without due public discussion and adequate deliberation, suppresses obligatory specialized following up, which is a natural procedural strengthening of that right to information of the pregnant woman.
11 – Finally, in accordance with the changes introduced by Law No. 136/2015, the rule that inhibited physicians or other health professionals to call on conscious objection relative to any of the actions surrounding abortion to take part in counselling was repealed. With the reconstitution of this ruling, a deterrent is reintroduced in the legislation which will possibly be taken as a suspicion regarding the exemption of the health professional as a conscientious objector, such as was already stressed in the Message I addressed to Parliament on 10 April 2007, thus withdrawn from all the stages of a procedure that, as should be pointed out, could both result in an abortion or, on the contrary, lead to the decision, freely taken by the woman, without any constraints, to go ahead with her pregnancy.
As such, considering the legislative development of this issue as well as the bases of the previous message sent to Parliament, and to allow Members of Parliament, should they so wish, to hear the opinions of individualities with relevant knowledge in this field and for a more mature re-pondering over legislative solutions to be adopted in such a politically, ethically and socially sensitive area, I decided to return to Parliament, without enacting, Bill No. 6/XIII.
With best regards,
Palace of Belém, 23 January 2016
The President of the Republic
Aníbal Cavaco Silva”
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