Organic Law 4/2022: Abortion Clinic Harassment, Art. 172 quater

Organic Law 4/2022, of 12 April (BOE-A-2022-6044), amended the Criminal Code to punish the harassment of women who attend clinics for the voluntary termination of pregnancy. The reform introduced a new offence —Article 172 quater CP— designed for a specific situation: the pressure women face at the entrance of termination clinics and the harassment of the staff who work there. As criminal defence lawyers, we explain what the reform changed and why, its practical scope, what it means today for a person under investigation or for a victim, and the defence lines the offence leaves open.

What the reform changed and why

Before Organic Law 4/2022, conduct involving pressure at the doors of abortion clinics had an uncertain place in criminal law. It could only be prosecuted if it reached the threshold of coercion under Article 172 CP, of threats or of a hate offence, which left out many forms of repeated harassment that, without reaching that intensity, genuinely conditioned a woman's decision.

The reform responded to that gap by creating a specific offence. The legislator considered that harassment at the entrance of termination clinics impairs the effective exercise of a recognised right and the freedom of the person seeking to exercise it, and that it deserved its own criminal response, without having to force the conduct into the general crime of coercion. Organic Law 4/2022 thus belongs to the group of criminal law reforms that have gradually shaped new offences to protect legal interests previously left unprotected.

Article 172 quater CP and its practical scope

The new Article 172 quater CP sits within the chapter on coercion, alongside Article 172 CP. It punishes anyone who, in order to obstruct the exercise of the right to the voluntary termination of pregnancy, harasses a woman through annoying, offensive, intimidating or coercive acts that impair her freedom. The penalty is imprisonment of three months to one year or community service of thirty-one to eighty days.

The offence does not protect only the woman. It provides the same penalty for anyone who harasses the medical or healthcare staff and other workers of the clinics that provide that service, where the conduct seeks to prevent or hinder the exercise of their activity. It is worth noting that the article also allows the penalty to be modulated in light of the seriousness, the circumstances of the offender and the surrounding circumstances, which opens a significant margin for individualisation.

Anyone wishing to place the provision within the broader text can consult the Criminal Code. Systematically, the key point is that this is an autonomous offence distinct from the coercion of Article 172 CP: it does not require the degree of violence or constraint of that crime, but rather a pattern of annoying or offensive acts aimed at obstructing the right.

The criminal conduct: what is punished and what is not

The core of the offence is harassment aimed at obstructing the exercise of the right to the voluntary termination of pregnancy. For the conduct to fall within the offence, several elements must, in essence, be present:

• A specific purpose: acting in order to obstruct the exercise of the right, or to prevent or hinder the work of the clinic staff.
• Particular means: annoying, offensive, intimidating or coercive acts, typically carried out in the vicinity of the clinic.
• A result: that those acts impair the woman's freedom (or, where applicable, the freedom of action of the staff).

In principle, expressions of opinion that do not translate into harassment directed at a specific person and that do not impair her freedom fall outside the offence. The boundary is not always clear-cut, and it is precisely where much of the defence is decided: expressing a public position on abortion is one thing, and harassing a specific woman to condition her decision at the clinic door is quite another.

Prosecution of its own motion: no prior complaint required

A significant procedural feature of Article 172 quater CP is that its prosecution does not require a prior complaint from the aggrieved party. Unlike other offences of coercion or harassment that depend on the victim's will to trigger proceedings, here it is enough for the authorities to become aware of the facts for the investigation to begin.

The practical consequence is twofold. For the woman affected, it means that the burden of filing a complaint does not fall on her in order for the conduct to be prosecuted, which reduces the exposure and pressure that often discourage complaints. For the person under investigation, it means that proceedings may begin from a police report, from the clinic's own action or from a third party, and that any forgiveness or inaction by the affected woman will not halt the process.

The Constitutional Court's endorsement (STC 75/2024)

The constitutionality of the new offence was challenged because of its possible tension with freedom of expression and with the right of assembly and demonstration. The Constitutional Court upheld the constitutionality of the provision in Judgment STC 75/2024, confirming that Article 172 quater CP is a valid and applicable offence.

The fact that the provision is constitutional does not mean, however, that any conduct at the entrance of a clinic is automatically criminal. The constitutional endorsement coexists with the requirement that the specific conduct meet the elements of the offence: the purpose of obstructing, the means of harassment and the impairment of freedom. A restrictive interpretation of the offence and respect for the legitimate exercise of fundamental rights remain the framework within which each individual case is decided.

What it means today for a person under investigation or a victim

For a person under investigation, the first thing to understand is that the offence has its own threshold, distinct from the coercion of Article 172 CP: it does not require intense violence; a pattern of annoying or offensive acts aimed at obstructing the right is enough. Hence the defence must analyse in detail which specific acts are attributed, with what purpose, towards whom and with what effect on her freedom. The penalty, which allows community service as an alternative to imprisonment, also opens room for a strategy geared towards individualisation.

For a victim, the reform offers a specific criminal avenue that does not depend on her complaint and that protects both the woman attending the clinic and the staff who work there. Documenting the facts —dates, place, nature of the acts, witnesses— is decisive so that the investigation can pin down the criminal conduct.

Defence lines

The defence against a charge under Article 172 quater CP usually revolves around two main pillars, already raised in the very debate on the constitutionality of the offence:

• Drawing the line with freedom of expression and assembly: showing that the conduct in question amounts to the legitimate exercise of fundamental rights —expressing an opinion, taking part in a gathering— and not harassment directed at a specific woman to obstruct her decision. Where the conduct remains at the level of public demonstration without impairing the individual freedom of the affected person, the offence should not apply.
• The precise definition of the criminal conduct: examining whether the attributed facts genuinely meet all the elements of the offence —the purpose of obstructing, the means of harassment and the actual impairment of freedom—. The wording of the offence, which uses concepts such as annoying or offensive acts, calls for a precise interpretation: not every annoyance is a crime, and it falls to the prosecution to specify which acts, with what result, make up the offence.

To these pillars are added the general safeguards of criminal proceedings: the presumption of innocence, the rigorous assessment of the evidence —often witness testimony and, where applicable, audiovisual evidence— and the individualisation of the penalty in light of the seriousness and the surrounding circumstances, with the possibility of community service. Each case must be assessed in light of the specific facts and the available evidence.