## Facts

- In criminal proceedings in Milan, an investigating judge (giudice istruttore) considered charges under Italian Penal Code art. 546, which punished anyone who procured an abortion on a consenting woman.
- Italian Penal Code art. 54 (state of necessity) could excuse otherwise criminal conduct only when required to avert a grave harm that is inevitable and imminent.
- The referring judge identified situations in which pregnancy endangered a woman’s physical and psychological health, yet did not satisfy art. 54’s strict necessity requirements (especially imminence).
- The judge reasoned that, if art. 54 were the only avenue to avoid punishment, women could be deterred from seeking therapeutic care aimed at preventing serious worsening of health conditions because of fear of prosecution.
- The judge referred a constitutional question challenging art. 546 insofar as it criminalized abortion even when continuation of pregnancy posed a serious threat to the woman’s health that could be medically determined but was not “imminent” in the sense required by art. 54.
- The challenge invoked constitutional protections for health (Cost. art. 32) and for maternity, childhood, and youth (Cost. art. 31), as well as the general protection of inviolable rights (Cost. art. 2), which the Court also connected to protection of the conceived.
- The State (through the Avvocatura dello Stato) argued that the abortion provisions, read together with art. 54, already protected the woman’s health and were consistent with constitutional protections of maternity and the conceived.

## Issues

1. Whether Penal Code art. 546 was unconstitutional insofar as it punished abortion of a consenting woman even when continuation of pregnancy entailed serious, medically ascertainable, otherwise unavoidable harm or danger to the woman’s physical or psychological health, contrary to Cost. art. 32.
2. Whether the Constitution’s protection of the conceived (as part of the inviolable rights recognized by Cost. art. 2) permits a penal regime that, in practice, requires the woman to bear serious health harm absent the imminence demanded by Penal Code art. 54.
3. Whether relying solely on the general state-of-necessity defense in Penal Code art. 54 provided constitutionally adequate protection for the pregnant woman’s health in cases of non-immediate but grave pregnancy-related risks.

## Decision

- The Constitutional Court declared Penal Code art. 546 partially unconstitutional.
- Art. 546 could not constitutionally punish abortion of a consenting woman “insofar as it does not provide” that pregnancy may be terminated when continued gestation implies serious harm or serious danger to the mother’s health that is medically verified and not otherwise avoidable.
- The Court held that the woman’s condition during pregnancy is distinctive and is not adequately protected by a general provision like Penal Code art. 54, which was drafted for different contexts and requires stringent conditions (including imminence).
- The Court recognized constitutional protection of the conceived under Cost. art. 2, but held that such protection is not absolute and must remain compatible with other constitutionally protected interests, especially the mother’s health under Cost. art. 32.
- The Court rejected treating the mother’s right to life and health as equivalent to the protection of the embryo for purposes of necessity analysis, noting the difference between the rights of a person already born and the protection accorded to the conceived.
- The Court made clear that it was not creating abortion on request; it required a narrowly framed health-based justification grounded in medical verification.
- The Court indicated that regulation, procedures, and controls belong to the legislature, including measures aimed at preventing abuse and, where feasible, safeguarding fetal life consistent with protecting the woman’s health.

## Legal Principles

- Health is a fundamental right of the individual under Cost. art. 32; criminal law must allow termination of pregnancy where continued gestation creates a serious, medically established, otherwise unavoidable harm or danger to the woman’s physical or psychological health.
- The conceived is constitutionally protected (linked to Cost. art. 2), but that protection is subject to limits and must be reconciled with other constitutional rights, including the mother’s health.
- In conflicts between the mother’s health and the protection of the embryo, the Constitution does not require treating the two interests as equal in every case; the already-born woman’s rights to life and health may prevail when serious health danger is shown.
- A general necessity defense that hinges on imminence and strict, generalized requirements may be inadequate to protect pregnancy-related health risks that are serious and foreseeable yet not immediate.
- When a penal prohibition is incompatible with constitutionally required protection of health, the prohibition is unconstitutional to the extent of that incompatibility (partial illegitimacy), leaving room for legislative rules on procedures and safeguards.

## Conclusion

In Constitutional Case No. 27/1975, the Italian Constitutional Court held that Penal Code art. 546 was unconstitutional insofar as it criminalized abortion even when continuing the pregnancy posed a grave, medically verified, otherwise unavoidable danger to the woman’s physical or psychological health, and it ruled that the general necessity defense in art. 54 did not supply sufficient constitutional protection for such health risks.


Italian Abortion Case, Constitutional Case No. 27/1975 (1975)