Stc 1452015

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The recent STC 145/2015 finally pronounces on a matter long discussed by the doctrine, that of pharmaceutical conscientious objection. In it, the Constitutional Court protects a pharmacist who expressly states his will not to dispense the postcoital pill, arguing its possible abortive effects. Although he also objects to the sale of condoms «for reasons of conscience», the TC does not protect him in this second case. What conception of conscientious objection can be deduced from this relevant pronouncement? What novelties does it bring with respect to previous constitutional jurisprudence? As was to be expected, STC 145/2015 has aroused a lively reaction. This paper aims to have a say in the debate from the impression that the Constitutional Court, so to speak, has been misunderstood.

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By writ registered in this Court on January 25, 2012, the Court Attorney Mr. Juan Ignacio Valverde Cánovas, on behalf of Mr. Joaquín Herrera Dávila and under the direction of Attorney Mr. José Miguel Castillo Calvín, filed an appeal for protection against the administrative and judicial decisions referred to in the heading.

The Plenary of this Court, by order of April 8, 2014, agreed, in accordance with art. 10.1 n) LOTC and at the proposal of the First Chamber, to hear this appeal for amparo.

Filed by Mr. Joaquín Herrera Dávila in relation to the sanctions imposed on the pharmacy he runs by the Regional Government of Andalusia and confirmed by a Contentious-Administrative Court of Seville.

Infringement of the right to conscientious objection, linked to the right to ideological freedom: sanction imposed because the pharmacy office had no stock of condoms and the drug with the active ingredient levonorgestrel. Individual votes.

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Plenary. Ruling 145/2015, of June 25, 2015. Constitutional appeal 412-2012. Filed by Mr. Joaquín Herrera Dávila in relation to the sanctions imposed on the pharmacy he runs, by the Junta de Andalucía and confirmed by a Contentious-Administrative Court of Seville. Infringement of the right to conscientious objection, linked to the right to ideological freedom: sanction imposed because the pharmacy office had no stock of condoms and the drug with the active ingredient levonorgestrel. Individual opinions.

1. By means of a document registered in this Court on January 25, 2012, the Court Attorney Mr. Juan Ignacio Valverde Cánovas, in the name and on behalf of Mr. Joaquín Herrera Dávila and under the direction of Attorney Mr. José Miguel Castillo Calvín, filed an appeal for protection against the administrative and judicial resolutions referred to in the header.

b) The plaintiff filed an appeal against the aforementioned decision, in which, among other points, he invoked the right to conscientious objection as a justification for not having a stock of condoms or the drug with the active ingredient levonorgestrel.

constitutional jurisprudence

Once freedom of conscience «lato sensu» is legitimized by constitutional texts, it is necessary to verify the extent to which the options of conscience that emanate from this freedom reach in the specific case, and what scope has been attributed by jurisprudence to the embodiment of the right in the constitutional text.

The European Court of Human Rights, for its part, has always rejected the idea that Article 9 ECHR simply extends its protection to non-compliance with the norm for reasons of conscience[10] and the Human Rights Committee, finally, does not believe that a general right of objection follows from Article 18 ICCPR[11].

There are, in particular, two legitimate cases: the objection of compulsory reservists, in the first place – contemplated in the Armed Forces Personnel Regime Law and developed in the Armed Forces Reservists Regulations[21] -, and the conscientious objection to the practice or participation in the interruption of pregnancy by health professionals, in the second place – provided for in Organic Law 2/2010, of March 3, on sexual and reproductive health and the voluntary interruption of pregnancy -, on which the recent STC 145/2015 has a bearing.

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