COMPARATIVE JURISPRUDENCE ALLOWING ACCESS TO ABORTION DESPITE PRENATAL PROTECTION In several countries, constitutional courts have allowed women to legally access abortion under limited circumstances despite an existing constitutional recognition or legal protection of fetal interests.20 Upholding the primacy of women’s rights, these courts have liberally interpreted their constitutions in favor of women accessing safe and legal abortion in certain situations. Spain The penal provision on abortion in the Philippines is based on Spain’s former penal code. While the Philippine law has remained in place, Spain now allows abortion up to 14 weeks of pregnancy.21 The Constitutional Court of Spain explained that the prevalence of the pregnant woman’s life over fetal interests is constitutional because “if the life of the ‘one to be born’ were protected unconditionally, the life of the unborn would be more protected than the life of the already born [the mother], and the mother would be penalized for defending her right to life.” On allowing abortion when there is a threat to the physical and mental health of a pregnant woman, the court noted “that the mother’s health takes precedence is not unconstitutional either, especially when taking into consideration that the requirement that she make such an important and difficult sacrifice to her health under the threat of penal sanction can be considered inadequate [to motivate such a sacrifice].”22 The court also allows abortion on the grounds of fetal impairment and rape because of the situation’s harmful impact on a pregnant woman’s dignity and free development.23 Ireland The Irish Constitution acknowledges the “right to life of the unborn and with due regard to the equal right to life of the mother.”24 The Irish Supreme Court has stated that the recognition of a right to life of the unborn is not an absolute ban on abortion, and has permitted abortion when “it can be established as a matter of probability that there is a real risk to the life [including risk of suicide], as distinct from the health, of the mother which can only be avoided by the termination of her pregnancy.”25 Ireland recently voted in a referendum to repeal the provision on the equal right to life of the unborn and mother and a new law allowing abortions during the first 12 weeks of pregnancy and up to the 24th week in limited circumstances is expected to be enacted by the end of 2018.26 Germany The German Constitutional Court acknowledges that while a fetus has a constitutional right to protection based on the right to life enshrined in their constitution, abortion is permitted when protecting fetal interests severely affects a woman’s right to life and health. The court explained that in a situation where a woman’s health is endangered, “her own ‘right to life and bodily inviolability’ is at stake, the sacrifice of which cannot be expected of her for the unborn life.” Other circumstances carved out by the court include pregnancies caused by rape, fetal impairment, and other “social or emergency” situations, all of which qualify as such extraordinary burdens that they outweigh the protection of fetal interests.27 Italy In balancing the “constitutional right to protection” of a pregnant woman and a fetus, the Constitutional Court of Italy has explained that the potential for life of a fetus cannot outweigh the right to life and health of a fully developed human being. They reason that this is because “there is no equivalence between the right not only to life, but also to health of someone who already is a person, such as the mother, and safeguarding the embryo that has yet to become a person.”28 CENTER FOR REPRODUCTIVE RIGHTS 11