[Editor’s Note: This is Part I in our symposium on the one-year anniversary of the Chilean Constitutional Court’s abortion decision. The Introduction to the symposium is available here.]
—Blanca Rodriguez-Ruiz, University of Seville
The recent decriminalisation of abortion in Chile is indeed to be welcomed, yet it stands as a case of too little, too late. It has arrived at a time when countries are moving from decriminalisation towards time-frame regulations, which guarantee access to abortion during an initial period ranging between ten and eighteen gestation weeks. Of the four possible exceptions to criminalisation, moreover, known as therapeutic, eugenic, ethical and social, Chile only contemplates the first three and does so, in the first two cases, under very restrictive circumstances. Similarly, the decision of the Chilean Constitutional Court on these exceptions has been issued decades after wider cases of decriminalisation, more recently also time-frame approaches to abortion, have been confirmed in other jurisdictions. More in tune with its times, however, the Chilean Court’s reasoning echoes these more recent decisions.
To begin with, this Court leaves out metaphysical, religious, moral, scientific, anthropological, political and other non-legal considerations in order to reason in strictly constitutional terms. It thus leaves out controversial questions, as are those concerning the ontological status of the foetus or the moral rectitude of women who consider abortion. These are indeed questions for which the law can provide no answer. Yet they often play a central role in legal discourses on abortion, mostly in the context of decriminalisation (see the 1975 decision of the German Constitutional Court –BVerfGE 39, 1) and in support of gendered arguments that justify limiting women’s access to it. Taking distance from them, the Chilean Court contemplates abortion from a strictly legal (constitutional) perspective (Considerando Tenth).
Reasoning in self-referential legal terms leads the Chilean Court to contemplate abortion from the legal status of the pregnant woman, not the foetus. A foetus, it says, is not a legal person, but a legal interest that might eventually become a person (Considerando Fortieth). It is therefore an interest of the highest relevance, hence worthy of protection, yet not to the same extent as legal persons (women) are. The legal focus is consequently on women. This again aligns the Chilean Court’s decision with time-frame discourses on abortion. As in these, women are taken seriously as legal subjects, i.e. as autonomous agents who stand as ends in themselves, not as mere means for the protection of others, notably the unborn (Considerando Forty-Seventh). The Court thus demands respect for women’s judgment and decisions on matters concerning their own lives, including motherhood (Considerando Ninety-Nine).
Being autonomous decision-makers need not mean being left alone when facing difficult decisions. In order to make informed decisions about pregnancy, women might need assistance. In the new Chilean legislation assistance is provided in the form of support services and verbal and written information both on abortion and on possible alternatives to it. Information must be complete and objective and must not aim to influence women’s decision, but to help them decide on their pregnancy consciously and without coercion –always, of course, within the narrow legal boundaries. The Chilean Constitutional Court has confirmed the constitutionality of this regulation (Considerandos Hundredth to Hundred-Seventh).
In a similar vein, the Chilean Court has moved away from the logic of confrontation that presides over decriminalisation discourses to adopt a relational logic characteristic of time-frame discourses. In line with the idea of “duality in unity” introduced by the German Constitutional Court in 1993 (BVerfGE 88, 203), the Chilean Court connects the fate of the foetus to the pregnant woman, with whom it shares “a common existence … without an individual or autonomous life” (Considerando Fortieth). This leads it to connect protection of the unborn to protection of the pregnant woman, pointing that some “protective measures must in fact be achieved with her involvement” (Considerando Forty-Seventh). It points, moreover, at the evolving nature of their relationship, at how protection of the foetus must accordingly be “gradual and incremental, depending on its level of development” (Considerando Fifty-First, referring to the 2012 decision of the Inter-American Court of Human Rights in Artavia Murillo v. Costa Rica)”.
In this way, the Chilean Constitutional Court has not only validated the recent decriminalisation of abortion in Chile; it has also provided a theoretical background that makes constitutional room for wider possibilities. This background is undermined by the Court’s generous recognition of the right to conscientious objection as rooted in the Constitution (Considerandos Hundred-Thirty-First et seq.). This is a questionable right, as it allows for individual exceptions to the implementation of the legal framework based on conscience. It can specifically prevent access to abortion where it is legally guaranteed. As in other systems where this right exists, as is the case in Spain, access to legal abortion in Chile will thus depend on the extent of its social acceptance. The Constitutional Court’s discourse on abortion should contribute to widen this.
Suggested Citation: Blanca Rodriguez-Ruiz, I-CONnect Symposium–The Chilean Constitutional Court’s Abortion Decision: Door Opened and Left Ajar, Int’l J. Const. L. Blog, Aug. 1, 2018, at: http://www.iconnectblog.com/2018/08/i-connect-symposium-the-chilean-constitutional-courts-abortion-decision-door-opened-and-left-ajar