The free development of the personality as a general fundamental right of freedom-autonomy: euthanasia and abortion in Constitutional Court Judgments 19/2023 and 44/2023

Abstract

Constitutional Court Judgements 19/2023 and 44/2023 have a common argumentative nexus that constitutes their main ratio decidendi, consisting of the creation of a new fundamental right of self-determination to decide on one’s own death and on the voluntary interruption of pregnancy, which come to constitute new fundamental rights to euthanasia and abortion, integrating them into the right to physical and moral integrity (art. 15 CE), thus limiting the legislator’s freedom of configuration with respect to them. The judicial activism deployed in this operation cannot fail to arouse great perplexity. The hitherto considered “principle” of the dignity of the person and the free development of personality (art. 10.1 CE), by virtue of this innovative case law, ceases to operate as such to become, no longer a “general principle of freedom”, a question that would even be far from peaceful in the doctrine, but a true “general fundamental right of freedom”, in short, as a rule of closure of the system of public freedoms. Unlike the regulation in German constitutional law, which inspired the Preliminary Draft of the constitutional report in Spain, in which the free development of the personality constitutes a fundamental right, also a rule of closure, with limits well established by the jurisprudence of the Karlsruhe Court on the matter, neither the literal diction nor the systematic structure of the Spanish Constitution allows an uncritical incorporation of the German construction, nor has its use by the Spanish Constitutional Court in the above mentioned rulings been adequate: The extension of...