For those sectors that oppose the inclusion of the three grounds in the new Penal Code, this issue should not even be debated given that, as they argue, Article 37 of the Constitution, the first in the catalog of fundamental rights, establishes the right to life “from conception to death.” Indeed, that article reads as follows: “The right to life is inviolable from conception to death. The death penalty may not be established, pronounced, or applied in any case.”
A “textualist” interpretation of the Constitution logically leads to this conclusion. However, the Constitution itself establishes in Article 74(4) a rule of interpretation of fundamental rights according to which the public authorities “in the event of a conflict between fundamental rights, shall endeavor to harmonize the goods and interests protected by this Constitution.” Based on this interpretative criterion, enshrined in the constitutional text itself, there is no doubt that when analyzing the constitutionality of the three grounds, a multiplicity of rights, legal assets, and interests must be taken into consideration, and not just a narrow and isolated reading of Article 37.
Two articles of the Constitution are particularly relevant in this exercise of interpreting the constitutionality of the three grounds. One of them is Article 38, which provides that: “The dignity of the human being is sacred, innate, and inviolable; its respect and protection constitute an essential responsibility of the public authorities.” For its part, Article 42 provides that: “Every person has the right to have their physical, mental, and moral integrity respected and to live without violence. They shall have the protection of the State in cases of threats, risk, or violation of these rights.”
Leaving a woman without the option of deciding whether or not to terminate a pregnancy when, for example, it is the result of rape, which always involves violence, abuse, and physical, moral, and emotional deprivation, is manifestly contrary to the fundamental rights of dignity, integrity, and to live free from violence, in accordance with Articles 38 and 42 of the Constitution. Something similar applies to cases where the pregnancy is the result of incest in which, as is often the case, a girl or adolescent is impregnated by a close relative (father, brother, uncle) who also places her in a situation of deprivation 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 a “living Constitution” in our country, but rather a text whose provisions are applied mechanically without taking into account the broader legal context of the Constitution itself and the reality in which it is inserted.
The American Convention on Human Rights, or Pact of San José, can be very useful in this exercise of interpretation and weighing that should take place in the event of legislative incorporation of the three grounds. Like the Dominican Constitution, this inter-American human rights instrument places the right to life as the first of the civil and political rights. Indeed, Article 4(1) states that: “Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.”
The use of the expression “in general” clearly indicates that while the right to life begins at the moment of conception, there is room for exceptions. In the Dominican debate on the Penal Code, three exceptions are proposed: 1) when the mother’s life is in danger; 2) when the pregnancy is the result of rape or incest; and 3) when it is scientifically determined that the fetus has deformities incompatible with human life. These are very limited exceptions that perfectly comply with the criteria set forth in the American Convention on Human Rights. It should also be noted that neither the Dominican constitutional provision nor the aforementioned provision of the Convention give rise to a full liberalization of the right to abortion (so-called free abortion) that would allow recourse to it “on demand” or as a means of birth control.
The American Convention on Human Rights was signed by the government of President Joaquín Balaguer on September 7, 1977, ratified by the National Congress, with a majority of the Reformist Party, on January 21, 1978, and its instrument of ratification deposited with the General Secretariat of the Organization of American States (OAS) on April 19, 1978. This means that this convention has constitutional status by virtue of the provisions of Article 74(3) of our Constitution, which states: “Treaties, pacts, and conventions relating to human rights, signed and ratified by the Dominican State, have constitutional status and are directly and immediately applicable by the courts and other organs of the State.” It follows that if legislators were to incorporate the three grounds into the Penal Code, they would have to pass constitutional scrutiny, unless there is a reductionist and decontextualized interpretation, from a legal point of view, of Article 37 of our Constitution.
Of course, this debate is not only legal-constitutional but also has an ethical dimension. Therefore, the law would not, and could not, compel any woman to terminate her pregnancy in any of the circumstances specified by the three grounds or in any other circumstance. What it would do is recognize her right to terminate her pregnancy in those three extreme circumstances in which the woman’s health, dignity, integrity (physical, moral, and emotional), and life itself are at stake.
The differentiation between the state and religious spheres takes on particular relevance here in the context of a liberal-democratic constitutional order that supports political, ideological, and religious pluralism, in which the state can fulfill legitimate secular purposes regardless of the beliefs that religious organizations may espouse. For their part, churches are called upon to play a crucial role in guiding and accompanying their faithful, especially in situations such as those covered by the three grounds on which women must make difficult decisions, for which they will surely have to resort to their sources of values and beliefs.
Published in Diario Libre: https://www.diariolibre.com/opinion/en-directo/la-constitucionalidad-de-las-tres-causales-AG25327043