Spain: Clinics condemned for claiming abortion is "safe"

“Interruption of pregnancy is a surgery that does not leave any sequel. Therefore, when you become pregnant, it will be just as if you had never aborted before. There is not any risk of sterility either if you abort once or more than once. Abortion is the most common surgery in Spain. It does not leave any sequel and the rate of complications is very low.”

These statements[1] could be easily found in 2017 in the FAQ section of the website of the Spanish association of abortion clinics ACAI (“Asociación Española de clínicas acreditadas para la interrupción voluntaria del embarazo”).[2] It was a reply to the questions “How many times can I abort? What are the associated risks? Does it generate sterility?”

Now, these statements cannot be found anymore. The answer to the same exact questions is just as follows:

“there is no evidence that a new abortion generates more risks or complications than the common ones associated to the first abortion.”[3]

It can be easily determined that the replies are totally inconsistent. While, in the first case, abortion was considered as harmless surgery, now risks and complications are admitted. Such alteration of a medical opinion should enormously worry anyone who is seeking advice regarding abortion.

A Spanish court condemned abortion clinics for “misleading advertising”

What are the reasons for such a change? It can very well be due to the fact that ACAI was very recently ordered, in a Judgment given by the Provincial Court of Asturias (Spain), to remove the statements because they were considered to be misleading and deceitful towards potential patients. This very relevant case was won by the Asociación Española de Abogados Cristianos[4] together with another plaintiff, a woman who committed an abortion and is now suffering emotional disarray.

The Provincial Court of Asturias has declared that, according to expert reports brought before the court and depositions made by experts and witnesses, the original statement made by the defendant can be considered misleading for an average consumer (let alone for a person in despair seeking a quick and immediate solution for a non-desired or unexpected pregnancy). Additionally, the Court has ordered ACAI to publish the relevant parts of the Judgment on its website for six months.

The decision of the Court is grounded upon section 3.e) of the Spanish Act on Advertising and section 5) of the Spanish Act on Unfair Competition. According to the Court, the advertising made by ACAI is considered unfair competition, through misleading advertising, as it omitted very relevant information regarding the risks associated to abortion.

A recognition of physical and psychological consequences of abortion

The court holds, after examination of the evidence taken, that no gynecological surgery is harmless (all of them can have sequels).

It has also been declared proven that psychological alterations are common and that sterility and other damages to female genital tract are probable. According to the Court, though physical damages (such as perforation of the uterus) are statistically not very common, the chances of psychological suffering and familial problems are easy to find.

Post-abortion syndrome, depression, and suicidal impulses are also, regrettably, observed very often by experts.

Finally, abortion has also been detected as a cause of increase of the chances of breast cancer in the first month after the abortion.

As of today, ACAI has presumably filed an appeal before the Supreme Court[5] and no publishing of the judgment is available in ACAI´s website. However, the Judgment has been made public on all legal databases.

The evidence brought to the court by experts and witnesses

None of these inferences appear to come from notorious evidence or personal knowledge of the members of the Court (means of evidence admitted in Spain), but from experts and witnesses brought by the plaintiffs. Surprisingly, the defendants did not produce any evidence to defend that their statement regarding the harmlessness of abortion was true.

This is particularly relevant because, according to section 217.4 Spanish Civil Procedural Law, in procedures where unfair competence and unfair advertising are under dispute, it is the defendant who has to prove that the advertising made is true and accurate and to show the material data on which the statements are based.

The silence shown by the defendant, followed by the removal of the statements in its website, invite a presumption that there was no proof of its accurateness. Now, cynically, abortion is recognized as potentially risky by ACAI but, instead of pointing out the risks, all that ACAI is able to tell is that second or further abortions are not riskier than the first one. Another absurd and false statement. If abortion has associated risks, more abortion in the same person increases, necessarily, the chances of damage (particularly psychological).

New doors opened for further pro-life action

Another relevant issue of the Judgment is that it has declared that an association set up to defend Christian values in society and a private individual who is suffering sequels out of abortion have a legal right of standing before the court in order to bring civil actions against advertising of abortion. The first instance judgment, issued by a Commercial Court of Gijón, had dismissed the claim (without going into the merits of the case) because it considered that there was no right of standing.

For a better understanding of the importance of this question, it must be stated that under section 32 of the Spanish Act on Unfair Competition, anticompetitive acts consisting of misleading advertising can be denounced by any interested party even if it is not a direct competitor of the defendant. The Court has construed these sections as conferring legal standing (and, thus, a legitimate interest) to associations and victims. This surely opens doors to further defend the life of those who have no means of defense.

by Alfonso Maristany

Alfonso Maristany obtained a Law Degree from the University of Barcelona (2004) and has ever since been practicing in civil and commercial litigation and arbitration in Spanish law firms as a member of the Barcelona Bar Association. He also holds a postgraduate degree in civil litigation (Pompeu Fabra University, Barcelona, 2005) and obtained an LL.M in international and comparative dispute resolution (Queen Mary, University of London, 2009). He is fluent in Spanish, Catalan, English and French.

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[1] They are freely translated by the author from Spanish to English, as any other translation found in this article.

[2] Spanish Association of authorized centers for the free termination of pregnancy.

[3] See https://www.acaive.com/preguntas-frecuentes/#toggle-id-15^, checked June 9, 2020.

[4] Spanish Association of Christian Lawyers.

[5] It has publicly declared its intention to appeal in https://www.acaive.com/acai-recurrira-el-fallo-de-la-audiencia-provincial-de-oviedo-ante-el-tribunal-supremo-2/acai-en-la-prensa/