LA OBJECIÓN DE CONCIENCIA FARMACÉUTICA EN LA RECIENTE JURISPRUDENCIA CONSTITUCIONAL ESPAÑOLA: OTRA OPORTUNIDAD PERDIDA

Abstract

In June 2015, the Spanish Constitutional Court rendered a judgment on the appeal filed by a pharmacist that had received an administrative penalty as a consequence of his conscientious objection to sell prophylactics as well as levonorgestrel (the so-called “morning-after pill”). The judgment recognized the right of conscientious objection of the pharmacist with regard to the latter product but not to the former. In this paper, the author analyses the content and reasoning of the judgment as well as its Spanish and European context. He argues that the protection offered to the objector’s freedom of conscience is correct, but he finds especially two aspects of the judgment that deserve criticism. On the one hand, the Court did not face the general question of conscientious objections as part of the freedoms guaranteed by article 16 of the Constitution, and grounded its decision on the precedent case law relating to conscientious objection to abortion. And on the other hand, it excluded the objection to selling prophylactics from the constitutional analysis without providing any reason. In the author’s view, it would be desirable to have a consistent constitutional case law on the situations of conscientious objection, making clear that —with or without a specific legislative provision— such situations must be subject to a balancing process to determine the prevailing legal interest in each case, from the perspective of the freedom of thought, conscience and religion guaranteed by article 9 of the European Convention on Human Rights as interpreted in Bayatyan; with the consequence that such process must include a serious scrutiny of the refusal to grant the legal exemptions requested by objectors taking into account that limitations on freedom of conscience only are legitimate when deemed “necessary in a democratic society”.