Separate opinion

Separate opinion on the Resolution U.no.137/2013

On the basis of Article 25 paragraph 6 of the Rules of Procedure of the Constitutional Court of the Republic of Macedonia (“Official Gazette of the Republic of Macedonia”, no.70/1992), upon my voting against the Resolution U.br.137/2013, adopted on 08.10.2014, for non-initiation of a procedure for appraising the constitutionality of Article 1 in the part: “the procedure for approval of termination of pregnancy”, Article 3 paragraph 2 in the part: “with written consent of the parent”, Article 3 paragraph 5, Article 4 paragraph 1 in the part: “paragraph 5 of Article 3” and “and prior to the expiration of one year from the previous termination of pregnancy”, title III “Procedure for approval and performance of termination of pregnancy” in the part: “for approval”, Article 6 paragraph 2 in the part: “and other required documentation defined in Article 9 paragraph 3 of this Law”, Article 6 paragraphs 4, 5, 7 and 8, Articles 7, 8, 9, 10 and 11 of the Law on Termination of Pregnancy (“Official Gazette of the Republic of Macedonia”, nos.87/2013 and 164/2013), I separate and explain in writing the following

S E P A R A T E   O P I N I O N

With the said Resolution, the Constitutional Court decided not to initiate proceedings for any contested article of the aforementioned Law on Termination of Pregnancy. Contrary to this assumed stance, and from the aspect of the constitutional provisions invoked by the application, and in particular Article 11, paragraph 1 (inviolability of the physical and moral integrity of the citizen), 25 (guarantee to respect and protect the privacy of personal and family life), Article 39 paragraph 2 (right and obligation to protect and promote one’s own health and that of others) and Article 41 (right to freely decide on the procreation of children) I believe that a reasonable question was raised as to the constitutionality for part of the impugned provisions noted above in this dissenting opinion.

Without any doubt, the issue of abortion is complex given that besides health issues it also raises serious social, religious, and even philosophical issues which reflect on the national constitutions and laws. The complex of these determinations in different states finds its appropriate reflection in the national law and in the solutions that are analogously normed. Without intending to engage in elaboration, comparison and contradictory juxtaposition of these different value views, I believe that the challenged provisions in the domestic law should be analysed primarily in terms of the guarantees and rights provided for by the Constitution of the Republic of Macedonia, and then vis-à-vis the international agreements ratified in accordance with it.

The Constitution of the Republic of Macedonia opted for a modern liberal concept of ensuring the rights of citizens, which in terms of the treatment of the issue of reproductive rights, that is, termination of pregnancy is wide enough, placing it within the frameworks of privacy and personal freedom in decision-making. Through this particular constitutional framework, in which the aforementioned constitutional provisions make a tight coupling in guaranteeing a woman’s right to termination of pregnancy, she has an inalienable, self-responsible and personal right of choice within reasonable limitations related to health etiology and accompanied by appropriate medical protocols, completely free personally to decide on the outcome of her pregnancy. At the same time, by determining such inviolable space for intimate personal choice, these provisions of the Constitution imply reasonable, restrictive and restrained behavior of the state rather than its pro-active direct involvement in the woman’s personal decision on this issue. The state, guided by the constitutionally guaranteed fundamental right of the individual, has a positive obligation to create a neutral and protective law, which in certain procedural framework would allow the pregnant woman efficiently and above all safe from health and medical aspects to exercise her right to access to legal abortion. This is the context in which the disputed legal provisions should be analysed from the constitutional court aspect.

The Law initially in Article 2 affirms the free decision of the pregnant woman. However, part of the further legal provisions viewed in their legal integrity and mutual interaction are in contradiction with the originally proclaimed principle. The whole procedure for approval of termination of pregnancy creates somewhat clear and unambiguous, somewhat hidden obstacles which by imposing numerous formal conditions that women must meet before the termination of pregnancy, create time and discouraging psychological barriers that the woman will have to overcome or “skip” to remain with her original decision. These legal and administrative prerequisites viewed independently for themselves may not give the impression that pose an obstacle to the exercise of this right, but if they are analysed collectively and in interrelation they create disabling legal context that puts women in a position to be in race with the time and deadlines in order to consistently observe all legal requirements and finally to exercise their right. Hence, instead of ensuring the exercise of this right, the state subtly limits it.

Under Article 3 of the Law, termination of pregnancy can be done until the expiration of ten weeks from the date of conception (this is a shorter time limit which the legislator chose vis-à-vis numerous other countries where the time limit is longer and lasts twelve gestation weeks) and by submitting a written consent of the pregnant woman. The initial procedure is regulated in Article 6 of the Law, where it is envisaged that the pregnant woman address in writing, there be a mandatory ultrasonographic examination, accompanied by the documents referred to in Article 9, which are: confirmation of a specialist that she is pregnant, confirmation that she has been informed and familiarised with the possible advantages and risks associated with pregnancy, but also including without necessarily distinguishing whether some of these documents would be required in each or only in certain cases – certificate from a Public Prosecutor for initiated criminal proceedings, a certificate from another doctor specialising in a specific disease, a certificate from the center for social work or a certificate from the medical institution for any serious, personal, family, material or other circumstances that will affect the health of the woman. The failure to differentiate clearly the necessity of the documents referred to in Article 9 paragraph 3 line 2 and the involvement of various institutions competent to issue documents related to the termination of pregnancy, create legal uncertainty for citizens and confusion in its application.

Furthermore, the Law requires without any foundation that the woman again confirm that she remains on her position to terminate the pregnancy and again to give a written statement, this time for consent for the conduct of the intervention under Article 3 paragraph 3 of the Law (which paragraph actually refers to the regulations for the protection of patients’ rights). Then comes Article 6 paragraph 7 where the Law sets a condition for the expiration of a period of three days after the counseling prior to the intervention, without an existing visible social justification or interest in the time period envisaged as such, which leads to a conclusion that a time period is left for a possibility to subdue the woman’s will to a review vis-à-vis her expressed view. This envisaged time limit applies only to women with legal capacity, which is another discrimination  against then vis-à-vis the other categories of women listed in that provision.

At the same time, it is necessary to note that there is illogical contradiction between Article 4 paragraph 1 line 1 and paragraph 3 of the same Article, because it is stated that pregnancy will be terminated if it is a danger to the woman’s life (line 1), but the termination of pregnancy will be performed if it is assessed that it will not lead to more severe damage to the woman’s health (paragraph 3). These provisions applied in practice create a state of absence of the rule of law as they may cause voluntarism and deprive citizens (women) of legal certainty in the exercise of their right.

In the establishment of the doctor that the termination of pregnancy is not allowed by the health condition of the pregnant woman, or that the termination of pregnancy will endanger her life or health, or if more than ten weeks have passed from the date of conception, Article 7 states that he is obliged to refer the pregnant woman to a first instance committee for approval of termination of pregnancy. Despite the obligation of the medical officer to refer the woman to a decision of a first instance committee, it is unclear why Article 9 again obliges the pregnant woman to submit a written application for termination of pregnancy (evidently, for this type of patients there is no automatism in the procedure). In this case also the pregnant woman must once again enclose all the documentation submitted previously. Article 11 paragraph 1 again requires informing the pregnant woman which by its content in the large part is the same with what is already stated in Article 6, and it is unclear why paragraph 2 states that if the first instance committee responds positively to the request of the pregnant woman, it then requires her to submit a written consent to perform the termination of pregnancy, which in itself is absurd.

I think the very fact that the pregnant woman turns to the health institution for termination of pregnancy is enough to accept that it is a clear expression of personal will, without insisting on a request in a specially defined form and content. The planned procedure is partly imprecise and arbitrary and partly very formalist in order to delay and deprive the urgency that is immanent for this issue. The numerous additional requirements (documents) that the pregnant women is obliged to submit against all other patients in need of some medical intervention actually create discrimination and lack of equality (equal access). As far as the envisaged committees, the law does not provide for grounds upon which the committees would accept or reject the application of the woman. There is no specific regulation of the work of the second instance committee, in terms of the approach to the question on which it is decided and the aspects in the formation of the final stance vis-à-vis the guaranteed right of the woman. Also, the finality of the decision of the second instance committee denotes an absence of any possible court protection (administrative dispute) for its review which I believe is not in accordance with the Constitution.

A special problematic issue is the obligation of the woman seeking abortion to submit a “certificate from the competent public prosecutor that criminal proceedings was initiated” (Article 9 paragraph 3 line 2), given that such cases are determined by a medical examination with which it would be established that the conception occurred by violent means when committing a crime. It is clear that the mere initiation of proceedings does not imply a conviction of the offender, and the confirmation from the public prosecutor has no evidentiary value. However, for women this legal solution is limitation of her right because of the the timeframe for obtaining this document, as well as further humiliation. I think the justification of the need to obtain such a document would have its logic only in the case of a committee decision-making on a longer pregnancy and only for the purpose of protecting the health of the woman.

The law states, but does not provide for specific emergency procedure in case of emergency, an omission which is very serious given that because of administrative labyrinths and under the threat of severe fines for medical professionals there may also be tragic consequences. I consider that given the intimacy and sensitivity of the issue of termination of pregnancy and its repercussions for the health, the very absence of a specific and carefully standardised regulation results in the restriction of constitutionally guaranteed rights. For illustration, regarding the violation of the constitutional right due to the absence of appropriate legal proceedings related to a health issue, I cite the repealing decision of the Constitutional Court of the Republic of Slovenia in the case U-I-127/01 which held that the disputed law on immunisation was not consistent with the Constitution because it did not regulate the procedure and rights of persons with regard to the determination that there were justified grounds for the non-taking of the mandatory vaccines and did not regulate the state’s responsibility for the damage caused to that person.

Vis-à-vis the impugned legal solutions, the Law on the Protection of Patients’ Rights includes the principle of availability which is stated and elaborated in Article 3 item 1 – “health services that are readily available and accessible to all patients equally and without discrimination” and in Article 5 item 3 – “the patient has the right to care, treatment and rehabilitation which are in accordance with his/her individual needs and abilities and promote his/her health condition”.

The impugned provisions also impose other necessary comparison of the legal status of the woman who wants and legitimately expects to terminate her pregnancy against the legal status of any other patient requiring other medical intervention in accordance with the Law on Protection of Patients’ Rights (Official Gazette of the Republic of Macedonia, no.82/08). In that sense, I consider that the part of the law using the words “approval by” is unconstitutional, because no other medical surgical intervention is legally regulated (tied) with its prior “approval” by the state. The Law on Protection of Patients’ Rights (Article 14) envisages the signing of a statement of acceptance or rejection of a medical intervention, and in no way a request for “approval”. The answer of the adopter of the act has no explanation, just a general statement that the right to abortion is not restricted, without explaining what is the difference according to the legislator between “the conditions” and “the procedure for approval” for termination of pregnancy, as the law states. The administrative obligation of “approval” to realise or not a particular medical intervention on which depends the health status of the citizen (woman) can be interpreted as a disposition of the legislator to this question, but also as a restriction of the right of the citizen as the holder of the right of his/her own physical integrity to protect and promote his/her own health and to freely decide on the procreation of children (to have or not to have children). The social justification for such a special, separate regulation of the termination of pregnancy could aim at the value of the legal good which is the subject of protection of the legislator, but it is clear that in this case there are two such mutually conflicting legal values, for the outcome of which the Constitution is quite clear, and for these reasons the legal solution should be in the function of such a setup.

If we assume that the impugned legal solutions are in the function of the right of choice of the woman under the constitution and law to decide freely, then it would be difficult to justify in this sense the need for the legally binding term “approval”. This used formulation relays that the state decides on behalf of the woman, that is, it is the state to decide whether to “approve” or “not approve” to perform the required termination of pregnancy which in its essence is unconstitutional. For this reason, I believe that the pregnant woman is discriminated against other patients who can obtain medical care without a requirement to deposit in advance their consent for the same in a strict legal form to finally obtain an “approval”. Also, problematic is that the act of approval refers to pregnancy in general, not for instance to longer pregnancy that might justify the granting of such an approval in order to protect the health of the mother and the fetus.

With regard to Article 3 paragraph 5, which prohibits termination of pregnancy if one year has not passed from the termination of the previous pregnancy, I believe that in accordance with the Constitution it should be a personal decision of the woman and not an administrative prohibition, which is imposed by the state therewith interfering with the privacy of the citizen. I think that it is arbitrary limitation since there is no visible legitimate justification of such a legal solution. The only criterion is the determination of the time (one year) in which this right is limited, in a provision which is general in nature and is not associated with a specific medical condition that would be related to woman’s health as a legitimately protected aim.

The special responsibility for the doctors and the committees for recording and archiving the cases for termination of pregnancy (Article 6 and Article 15 of the Law), further regulated vis-a-vis that in the Law on the Protection of Patients’ Rights, I deem that they constitute an excessive and unnecessary interference of the state in the area of ??privacy of the citizen.

In terms of Article 3 paragraph 2 and Article 9 paragraph 2 which relate to termination of pregnancy if the woman is a minor, it should be emphasized that the Constitution does not link this right to the adulthood of citizens, but it recognises it to all regardless of age. The presence of the parent/guardian in certain stages in the procedure in the decision-making or signing of the declaration of acceptance of the intervention has no gradation in terms of age, which in itself can lead to restriction of the rights of these individuals. Similarly, when it comes to a woman with no legal capacity, the law does not provide for gradation in terms of the degree of disability, which in itself can lead to restriction of the right of these persons as well. It is a fact that in some cases the inadequate, insufficiently clear legal formulation or too general  standardisation without adequate development and gradation of the normed phenomenon limits the exercise of the right of the citizen. Such examples exist in the case-law of the Constitutional Court of the Republic of Macedonia, which comprise U.br.141/2012 and U.br.112/2009.

An indication that the legal system of the Republic of Macedonia de facto in different areas recognises the older versus younger minors certain degree of legal capacity are the following laws: the Labour Law allows a person who turned 15 years of age and has a general health capacity to conclude a contract for employment (Article 15) and Chapter XIII is dedicated to the special protection of workers who have not yet turned 18 years of age (Articles 173-176), which means that that person can have incomes and dispose with them in legal transactions; the Criminal Code has specific criminal law provisions for minors, where criminal sanctions may not be applied against a minor who has not turned 14 years of age (Article 71), but it is popssible against an older one; only educational measures may be pronounced against a younger juvenile (14-16 years old) (Article 72 paragraph 1), and if it is an older juvenile (16-18 years old) correctional measures may be pronounced against him and even juvenile prison; under the Law on Associations and Foundations, an association of citizens can be established by minors who have reached the age of 15, with a statement of consent for the establishment of an association from their legal representative for the purposes for which the association is founded in accordance with the law (Article 15), but once it is established, minors in the organisation work independently, without supervision from adults; under the Family Law a person under 18 years of age may not get married (Article 16), but the competent court may, in an out-of-court procedure, allow marriage to a person who has reached 16 years of age if it determines that he/she has reached the physical and mental maturity necessary to perform the rights and obligations arising in marriage, and after previously obtaining an opinion from a health facility and specialised assistance in the center for social work. In the case of the existence of these legal provisions, especially the one mentioned in the Family Law, the question raised is whether for the woman who is an older juvenile, especially if already married, there is really an imperative need for this legal solution that in principle may violate Article 11, Article 25 and Article 41 of the Constitution. From a legal point of view and in a principled view, there is an obligation for a legal representative for the persons under 15 years of age.

In some European states when it comes to a minor the permission (consent) or information about abortion for the parent/guardian is allowed to be circumvented through a committee which would agree that the woman is at risk if her parents would found out about the pregnancy, or that generally is in her best interest her parents not to be notified. In the domestic Law for the Protection of Patients’ Rights Article 15 paragraph 3 states that when the interests of the patient and the parent/guardian are juxtaposed,  the competent Center for Social Works decides based on the principle of urgency. The right to confidentiality (Article 25) and privacy (Article 28) is also guaranteed, and intrusion or interference in the private and family life of the patient is prohibited unless there is consent of the patient and justification in terms of the performance of the medical intervention (Article 32 item 8). Article 11 states that a patient with permanently reduced ability of judgment also has the right to information, in accordance with his/her physical, mental and psychological condition, as well as his guardian or legal representative. As evident from the noted articles, this Law vis-à-vis the presently disputed one has a different approach to health issues of minors and persons with disabilities. According to the above, especially when it comes to an older juvenile who is able to express a relevant legal will, I consider that the request for the written consent of a parent/guardian is a violation of the right to privacy and discrimination based on age, guaranteed by the Constitution.

In this dissenting opinion I would like to reiterate the previously stated position in the case U.br.87/2013 in respect of Article 6 paragraph 4 in the part “the content and”. Since the legislator gave an objective legal framework in which direction should take place the counseling of the pregnant woman referred to in paragraph 3 of the same Article (which states the entire contents of counseling), I believe that the Minister of Health may understand the content and method of advising of the pregnant woman only as operationalisation of the Law, and not as a right to originally define other contents of counseling, outside the regulated ones and “with a special act” as stated in the disputed article. In paragraph 4, with the very fact that the content of the special act that is to be adopted by the health minister is mentioned again and he is legally authorised to regulate it with a special act, the Law leaves room for further intervention of the Minister in the content of the bylaw, and beyond the already given legal framework, with new elements of counseling that are unknown in advance. My dissenting opinion on this issue is based on the very rich past case-law of the Constitutional Court, which has consistently built its position taking into consideration that the relevant criteria or parameters in the standardisation of a particular area (in this case, the content of the counseling of pregnant women) should be an integral part of the law, but only their operationalisation is an issue that can be regulated by a bylaw. I hold the same position for Article 6 paragraph 1 in the part “in a form and content as determined by the Minister of Health”.

Finally, I would like to point out that the Court in assessing the constitutionality of the challenged provisions, in this case had to take into account the international documents ratified in accordance with the Constitution, which are part of our internal legal order and may not be changed by law (Article 118 of the Constitution), the European Convention on Human Rights, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities with the Optional Protocol.

Dr Natasha Gaber – Damjanovska
Judge at the Constitutional Court

Resolution U.no.137/2013

 

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