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The dissenting vote on the Euthanasia Law considers that hospitals of “religious entities” should be exempt from applying it | Spain

The magistrate of the Constitutional Court Enrique Arnaldo in the plenary session of January 2023.
The magistrate of the Constitutional Court Enrique Arnaldo in the plenary session of January 2023.ZIPI (EFE)

Magistrate Enrique Arnaldo, from the conservative sector of the Constitutional Court, has delivered his dissenting vote with the ruling that has rejected the PP’s appeal against the euthanasia law, in which he maintains that “it is indisputable that there are private health centers owned by religious entities, whose ideology excludes the practice of euthanasia.” Arnaldo adds that “Coercively imposing on these legal entities the duty to practice the provision of assistance in dying in their facilities is an attack on the right to ideological and religious freedom (article 16.1 of the Constitution) in its collective dimension.”

Arnaldo considers that the failed issued by the Constitutional Court on the 13th “avoids” the problem of conscientious objection when it concerns legal entities, and limits it to health professionals. The dissenting opinion considers that the court gave in its ruling “a formal, evasive and insufficient response to the appellants’ complaint.” He adds that the ruling does not even conform to the content of the challenged law itself. Arnaldo’s argument is that although the law establishes “a legal duty to guarantee the right to the provision of aid in dying for public health services, this guarantee does not operate on the same terms with respect to private or subsidized health centers.” .

The dissenting vote maintains in this regard that the euthanasia law is only limited to requiring that “access and quality of care cannot be impaired” by the place where it is performed, “but it does not directly impose on these health centers the obligation to guarantee the provision of assistance in dying.” Arnaldo focuses his text on this aspect because the court had a special impact on the denial of conscientious objection to legal entities to respond to the PP’s proposals. Unlike Vox’s challenge, rejected last March, the PP’s appeal focused its thesis on the fact that not only health professionals, and ultimately natural persons, could exercise said objection.

Arnaldo also criticizes that the ruling has endorsed the constitutionality of the law in relation to its provision that appeals on the right to euthanasia will be processed “in accordance with the preferential and summary procedure for the protection of the fundamental rights of the person.” The PP’s complaint – the dissenting vote states – should have been upheld, since “the preferential and summary procedure (of possible appeals), based on the speed of jurisdictional protection” is in its opinion reserved by the Constitution itself “for the protection of fundamental rights and freedoms”, among which – he adds – is not that of euthanasia.

“Not being the right to euthanasia recognized and regulated by Organic Law 3/2021 (the one challenged by the PP) a fundamental right,” argues the dissenting vote, “it is not constitutionally legal for the claims relating to the denial of the benefit in that this right is materialized are substantiated through that privileged procedural guarantee” provided for in article 53.2 of the Constitution. This thesis is also shared by Judge Concepción Espejel, who also voted against the ruling that endorsed the Euthanasia law and rejected the appeal presented by the PP to have it declared unconstitutional.

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