New legislation in Spain will ensure free, publicly provided abortions and allow menstrual leave from work. The raft of measures shows left-wing party Unidas Podemos’s strong feminist stance — but faces obstruction from the country’s hard-right judiciary.
“This law will expand women’s rights and put an end to obstacles preventing the free exercise of the right to abortion,” insisted Spain’s equality minister, Irene Montero, after ambitious new legislation was approved at cabinet last month. The law aims to guarantee free public provision of abortions, in a country where over 80 percent of voluntary terminations currently take place in the private clinics, at great cost to working-class women. It also promises to overturn a series of paternalistic restrictions imposed by the previous right-wing administration.
The law, which still needs final approval in parliament, has made international headlines for its far-reaching reforms. It will make Spain among the first countries in the world to legislate for paid leave from work for women suffering from period pain. “We are breaking the taboo around menstrual pain, thus far experienced by so many women in terms of silence and shame in the workplace,” argued Montero, who is also deputy leader of left-wing party Unidas Podemos.
The move is part of a raft of feminist legislation, including an important trans rights law and new active consent legislation, promoted by a government coalition uniting Unidas Podemos with the center-left Spanish Socialist Workers’ Party (PSOE). Yet this effort also faces obstacles, in a Spain torn between a left-leaning executive and reactionary judicial authorities, who have made a series of sharply political interventions in recent years.
Isa Serra is a national spokesperson for Unidas Podemos and an adviser to the Equality Ministry. Herself a victim of the “lawfare” campaign against the left-wing party, she was forced to give up her seat in the Madrid regional parliament, where she had been the party’s leader. She spoke to Jacobin’s Eoghan Gilmartin about the abortion legislation and the government’s battles with a hard-right judiciary.
Advancing Abortion Rights
- Eoghan Gilmartin
Confronted with the setbacks in abortion rights in the United States, Spain stands out as an example. The Equality Ministry under Irene Montero is advancing legislation in the opposite direction, with new legislation that will extend women’s rights in this area. What’s the importance of this new law?
- Isa Serra
The struggle for sexual and reproductive rights has become one of the central battlegrounds between feminist movements and the extreme right across the globe. In Mexico, Argentina, Colombia, and Chile, as well as in countries like Ireland, we have seen new abortion rights secured in recent years, as well as major mobilizations driving these advances. But anti-feminism and contesting women’s rights have also been a defining element around which the extreme right has mobilized its support, and in the United States and Poland there have been major setbacks. We have seen a handful of judges withdrawing reproductive rights from tens of millions of American women.
In this context, the example of Spain is crucial. What we are making clear with this new law is that the right of women to freely choose with respect to our own bodies is an essential part of ensuring we enjoy full and equal citizenship — that, like men, we have the freedom to determine the direction of our own lives. But right now 80 percent of abortions in Spain take place in private clinics, and to fully exercise this right requires public provision. Our legislation will guarantee this across the state.
There are other restrictions placed on abortion rights that this law will do away with. For example, the three-day reflection period, introduced by the [conservative] Partido Popular (PP). A women can decide on the spot about any major medical procedure but when it comes to abortion you currently have to go home with a pamphlet on motherhood and “reflect” for three days. It is clearly paternalistic.
The legislation will also do away with the requirement that those aged sixteen to eighteen need parental consent to get an abortion. The Right will always be against giving teenagers the right to choose for themselves, saying they are just children and they are not mature enough. But they seem to think they are old enough to be mothers and to take all the decisions involved in raising a child.
- Eoghan Gilmartin
In general, Spain has a strong public health system, with free universal access. Why, then, are the vast majority of abortions taking place in private clinics and what measures will this new legislation introduce to reverse this trend?
- Isa Serra
The 2010 law introduced by José Luis Rodríguez Zapatero’s PSOE government represented an advance but it also had a lot of weaknesses, which have been exploited by the Right. One key element in this respect is the way right-wing regional governments have abused the right to conscientious objection [by medical staff]. They insist there are no doctors in the public system willing to carry out the procedure in Madrid or Castilla y León — but then many of the same doctors are carrying out abortions in the private system.
The new law sets out to rebalance respect for the right to conscientious objection with women’s right to public provision of abortions. First, we are creating a register of individual doctors working in the public system who refuse to carry out abortions and once on the list they are not eligible to carry out terminations in the private system, either. Second, there is a new provision under which all public hospitals must now guarantee that there are the necessary personnel available on staff to carry out abortions, beyond those who are genuinely conscientious objectors.
Right now, there are women who have to travel hundreds of miles outside their provinces to get an abortion in the public system and this law will ensure that this ends. They should not be put through the strain of traveling to another city by bus, and also having to miss two extra days of work, just to gain access to the public health system.
- Eoghan Gilmartin
The law will also see Spain become the first country in Europe to guarantee paid menstrual leave. But it was a measure Unidas Podemos had to fight for against opposition from the PSOE and particularly its right-wing economics chief, Nadia Calviño, who claimed it would further stigmatize women in the job market. How has this measure been drafted to avoid such discrimination?
- Isa Serra
Honestly, we are very proud of being one of the first countries in the world to legislate in this area. There is a huge social taboo around the subject of menstrual pain and it is not okay to tell your boss: “Listen, I cannot get out of bed today. My period pain is overwhelming.” In a patriarchal society, everything to do with a women’s period is kept invisible and we have not been able to have a serious public debate about what it means in terms of leaving many women incapacitated on occasions. Even simply by opening up this debate, the measure has been positive.
In terms of the internal differences within the coalition, our draft legislation was leaked a week before it was to go to cabinet, seemingly by someone in another area of the government [as an attempted sabotage], but this made our negotiation much easier as we got such a positive public reaction. Up until then, we were far from sure we would win the battle over its inclusion because our government partner was not willing to move on it, but PSOE then had to give way in the face of its evident popularity.
As for Calviño’s argument that it could stigmatize women, really what we are talking about is her preference to protect employers’ privileges in the workplace. The law, and this legislation, has to guarantee equality of conditions [between genders] but from a perspective that takes into account our differences, including physiological ones such as menstrual pain. Not to take action on an issue that leave us temporarily incapacitated, and to simply leave period pain unaddressed, is the real stigmatization.
This is also the case because the policy is designed so that your sick pay, starting from day one, is covered by the state. It is true that if it was a measure that businesses had to pay for themselves directly it could have discriminating effects, but like parental leave in Spain, this will be paid out of public funds. The law also contains a series of measures aimed at tackling menstrual poverty, such as the distribution of free tampons and sanitary towels in public high schools, prisons, and civic and women’s centers.
Judges Against Democracy
- Eoghan Gilmartin
On May 26, Spain’s parliament passed another of the Equality Ministry’s key pieces of legislation: a new active sexual consent law, known as “only yes means yes.” This was a key demand of the feminist movement after the so-called “wolf pack” trial, which saw a group of five men acquitted of rape after sexually assaulting a woman (and instead convicted of the lesser crime of “sexual abuse”) because the court ruled that they had not technically used violence and the woman hadn’t fought back.
But, this new definition of consent has been harshly criticized in the official report by the highest organ within Spain’s ultraconservative judicial authorities. It says the law places a presumption of guilt on those accused of sexual assault. Can you explain the importance of this new consent law and the significance of the judicial counterattack?
- Isa Serra
If the General Council of the Judicial Power [GCJP] is not in favor of such feminist legislation, that is further proof it is going in the right direction. It is a reactionary and anti-feminist body which has rejected all major democratic advances in this country since the end of the Francoist dictatorship, such as the Zapatero-era gender violence law or the introduction of same-sex marriage, which it compared to a marriage between a man and an animal.
But yes, the passing of the “only yes is yes law” represents a paradigm shift, putting active consent at the center of the legal definition of sexual assault, thus aiming to defend women’s sexual liberty. The legal burden cannot fall on women and their reaction during a sexual assault because anyone who finds themselves undergoing such aggression can easily find they freeze and are unable to react. Such a response, or the absence of violence and explicit intimidation, cannot constitute legitimate grounds for treating nonconsensual sexual relations as a less serious offense — as was the case in the “wolf pack” case. Under this new law all sexual relations in which consent is not given will be considered rape.
But the legislation goes further than that. It is also focused on preventing sexual assaults — through making sexual education obligatory at all stages of the education system — while also investing in a new network of twenty-four-hour public crisis centers in which women who have been sexually assaulted can receive care.
- Eoghan Gilmartin
The media coverage of Montero has also been pretty incredible during the unveiling of the abortion law and the passing of the new consent legislation. The conservative press cast her as a dangerous figure out to impose a radical agenda on Spanish society. But they are greatly aided in this by the judiciary’s critical reports, which include a very harsh attack on the trans rights law, echoing right-wing talking points.
- Isa Serra
Yes, the extreme right cannot be understood simply in terms of its party-political form. Rather, this is a wider movement anchored in certain social and institutional structures. In this respect, important sectors within the country’s judicial branch are openly opposing the current coalition government. You only have to think of some of the rulings coming from the Constitutional Court [for example, ruling the government’s COVID-19 lockdown unconstitutional], which are simply unintelligible if you do not understand them in terms of their political intent.
Similarly, the GCJP blocked the trans rights law’s passage through parliament for months as they delayed releasing its report, and we can see here again its political interest in blocking and slowing down our agenda. Part of the content of the report itself represents an unwarranted questioning of the rights of the LGBT community.
Beyond that, the media is decisive in terms of amplifying and facilitating the spread of extreme-right ideas. Conservative and right-wing outlets have used all their power to attack feminism and, in particular, to turn Irene Montero into a hate figure. Irene is not only a young woman involved in politics but has also become a government minister who is now advancing a new generation of women’s rights. I see the level of aggression generated around her in the media and online as constituting a form of political violence. Indeed, she was also subject to more than a year of daily extreme-right protests outside her family home [which she shares with her partner, ex-Podemos leader Pablo Iglesias].
The degree of scapegoating being experienced by young women on the front line of the feminist movement is not something anyone should have to undergo. On top of that, she is a leading figure in Podemos, which has been subject to an unprecedented campaign of criminalization that aimed to marginalize us in the public sphere and erode our support.
- Eoghan Gilmartin
You have been one of the most high-profile victims of this lawfare campaign against Podemos, having been convicted of assaulting a police officer based on no proof beyond very contradictory police testimony. Despite the lack of any material evidence, you were given a nineteen-month suspended jail sentence and barred from public office. A very similar fabricated conviction was handed down to your colleague Alberto Rodríguez, while nearly every other Podemos leader has been investigated on various bogus charges.
- Isa Serra
Yes, we have had to deal with many legal actions against the party leadership, but the vast majority were dropped before reaching trial for lack of evidence. But the coordination between the right-wing judges and the media ensures you have months of negative press coverage first before the case is then thrown out. And by then the damage is done as they have helped spread the idea that all politicians are corrupt, that we are all the same.
In my case and that of Alberto’s, there were convictions but they were completely based on false police testimony. I went to a protest organized to block an eviction, but I only ended up staying five minutes and was not even in the vicinity of where the police were located. It was a complete fabrication, with the police claiming I insulted them and threw objects, which is simply a lie. We submitted hundreds of videos as evidence that proved I could not have been there, but the judge, who was appointed by the Partido Popular, chose to ignore this and rest his conviction solely on the contradictory testimony of the two officers. My appeal was then heard in the Supreme Court, which also has a conservative majority appointed by the Right.
Ultimately, mine and Alberto’s convictions were about making examples of us, to discourage activism and social mobilization. The message these courts were sending was that simply for participating in a protest, you can end up with a criminal conviction. And in the end, I have had to step back from institutional politics.
Trans Rights
- Eoghan Gilmartin
You mentioned the Equality Ministry’s trans rights law, which is currently being held up. When do you expect it to pass — and is the problem also resistance from the PSOE, with many of its leading figures coming out against the right to gender self-determination, which the law would enshrine?
- Isa Serra
I think the clash within the coalition has various factors. In part this is a question of political rivalry, with PSOE having been uncomfortable with Podemos controlling the Equality Ministry since the beginning. But there are also more profound ideological differences. These have to do with the fact that PSOE was able to institutionalize feminist demands throughout the 1980s and ’90s and had more organic links to these mobilizations, but when a new wave of feminism surged over the last decade, this represented a break from the previous generation in terms of its demands, discourse, and agenda.
For example, placing precarious workers in largely feminized sectors, such as hotel cleaners and domestic workers, at the center of the agenda. This shifts away from the liberal focus on breaking the glass ceiling and ensuring a few women succeed in reaching the top while many more struggle to make a living wage. Questions of social reproduction, the caring economy, and LGBT rights all take on new importance. And in Spain, Podemos has been much better situated, given the younger age profile of our leading cadre, to offer an institutional expression of these new demands.
So, this is not only a dispute around power and influence in the coalition but also a political dispute between different conceptions of feminism. The campaign undertaken by sectors within PSOE against the trans rights law ultimately puts the rights of trans people at risk. Some of the positions taken by individuals were extremely dangerous and outright transphobic in this debate. Trans rights are human rights, which aim to ensure that every person has the capacity and the right to decide over their lives and their gender identity.
But thanks to the fact that we have already managed to approve the legislation at cabinet, these voices within PSOE no longer have the same weight, with [Prime Minister Pedro] Sánchez having now given his backing to the law. The legislation should now reach parliament for its approval by August.
- Eoghan Gilmartin
The two key ministries that Unidas Podemos control — equality and labor — have produced important legislative advances over the last two and a half years. But is it fair to say that PSOE’s timidness in many other areas, above all in terms of its response to the cost-of-living crisis, puts the electoral hopes of a second term for the coalition in serious jeopardy? This also leaves your achievements thus far in a somewhat precarious position, as an alternative hard-right coalition of the PP and Vox could reverse these new labor and feminist rights from recent years.
- Isa Serra
Well, we have always aspired to be the majority force in government and in the next elections [scheduled for late 2023] we are aiming to go further and overtake the PSOE. But yes, right now we are having to fight PSOE to advance many of the key policies already agreed upon in the program for government. This can be exhausting but, at the same time, the coalition’s policies with the highest public approval ratings have nearly all been launched from Unidas Podemos–controlled ministries.
We are aware that there is a sense amongst voters that this government has not been quick enough to roll out the type of social policies required to deal with the various crises of recent years. In this respect, PSOE needs to pick up the slack because only by pushing forward a battery of social and feminist policies are we going to be able to defeat the Right. Beyond simply stoking fears of an extreme-right victory, we have to ensure that voters feel that the coalition represents a clear social alternative, one which can open up new horizons for the country.
This post was originally published on Jacobin.