The High Court of Justice of Madrid (TSJM) has ordered the Community of Madrid to initiate the procedures for the creation of the Register of Conscientious Objectors for Voluntary Interruptions of Pregnancy (IVE) and proceed with its implementation in accordance with the protocol agreed upon in the Interterritorial Council of the National Health System.
This is stated in an order from the Contentious-Administrative Chamber in which the precautionary measure requested by the Ministry of Health is accepted given the inactivity of the regional Government in the preparation of the list of conscientious objector professionals for these interventions.
The judicial resolution specifies that the precautionary measure does not imply the immediate creation of the registry by the Community of Madrid, but it does oblige to initiate the administrative procedures necessary for its elaboration and approval in accordance with current regulations.
The decision is adopted within the framework of a contentious-administrative appeal filed by the State Attorney's Office against the inactivity of the autonomous administration in the application of Organic Law 1/2023, which modified Organic Law 2/2010 on sexual and reproductive health and on the voluntary interruption of pregnancy.
Specifically, the lawsuit refers to the fulfillment of the obligation contained in article 19.ter of the regulation, which establishes that each autonomous community must create a registry of healthcare professionals who exercise their right to conscientious objection regarding direct intervention in the practice of IVE.
Register of healthcare professional objectors
The aforementioned legal provision establishes that the autonomous communities must have a register of healthcare professionals who are conscientious objectors for organizational purposes and to ensure the proper management of healthcare provision.
The objective of this instrument is to facilitate the planning of the health system and ensure the correct provision of the service within the National Health System, making compatible women's access to voluntary termination of pregnancy with the exercise of professionals' right to conscientious objection.
The regulation also provides that the Interterritorial Council of the National Health System agrees on a specific protocol that establishes the minimum conditions for the creation and operation of these registries.
In application of this provision, on December 16, 2024, the Interterritorial Council approved a coordination protocol for the implementation of the registry in all health administrations.
As stated in the order, said agreement was adopted unanimously with the participation of all autonomous communities, including the Community of Madrid. The protocol is binding as an instrument of administrative coordination in accordance with the legislation on the legal regime of the public sector.
The TSJM accepts the precautionary measure requested by Health
The General State Administration requested during the procedure the adoption of a precautionary measure that would oblige the Community of Madrid to proceed with the creation of the registry provided for in state legislation.
The petition was formulated under the protection of articles 129 and following of the Law on Contentious-Administrative Jurisdiction, which regulate precautionary protection in this type of proceedings.
The State Legal Service argued that the lack of implementation of the registry constitutes a case of administrative inactivity in the face of a specific legal obligation.
In its writing, it defended that the creation of this organizational instrument allows for adequately planning healthcare provision, guaranteeing equality in access to it, and at the same time protecting the right of healthcare professionals to conscientious objection.
He/She also pointed out that the majority of the autonomous communities have already created the registry or are in the process of doing so, while the Community of Madrid would not have initiated the necessary procedures despite the requirements of the Ministry of Health.
The arguments of the Community of Madrid
The Community of Madrid opposed the adoption of the precautionary measure, considering that the creation of the registry is an organizational measure that requires regulatory development and that its precautionary imposition could anticipate the outcome of the main process.
The regional Government also maintained that the healthcare service of voluntary termination of pregnancy is guaranteed in its healthcare system through its own organizational mechanisms.
As he/she explained, when all the professionals of a certain service exercise conscientious objection, the patients are referred to authorized centers that can provide the service.
The autonomous administration also raised objections about the legitimacy of the Ministry of Health to promote the appeal and doubts about the interpretation of the legal obligation to implement the registry.
The court sees risk of prolonged non-compliance with the Law
In its resolution, the TSJM recalls that the appeal against administrative inactivity provided for in the Law on Contentious-Administrative Jurisdiction has as its purpose to combat the passivity of public administrations when there is a specific obligation to act derived from a norm.
The order analyzes the requirements demanded to adopt precautionary measures, especially the risk of loss of the legitimate purpose of the appeal and the weighing of the interests in conflict.
The Chamber concludes that there is the risk that the delay allows to indefinitely prolong the non-compliance with a legal obligation established in an organic law.
Likewise, it considers that the public interest associated with the compliance with the regulations and with the coordination of the National Health System justifies the adoption of the requested precautionary measure.
The court finally underlines that the registry provided for in the law has an organizational purpose intended to improve the management of healthcare provision and to guarantee both the rights of women and those of healthcare professionals.