[Editor’s Note: This is Part III in our symposium on the one-year anniversary of the Chilean Constitutional Court’s abortion decision. The Introduction to the symposium is available here, Part I is available here, and Part II is available here.]
–Gabriela Rondon, Sinara Gumieri and Luciana Brito, Researchers at Anis – Institute of Bioethics
In August 2017, Chile’s Constitutional Court took a bold step toward dismantling the country’s total ban on abortion: it upheld the constitutionality of new legislation allowing for legal abortion in three cases: when the woman’s life is at risk, when the pregnancy is a result of rape or incest, and when there is fatal fetal condition. The decision is a historic victory for women’s movements in Chile, who have been fighting for the past 28 years to overturn the cruel ban, which could impose, for example, up to five years imprisonment for a woman who ends a pregnancy with a non-viable fetus or a health professional who provides an abortion for a rape victim. The Court’s ruling is undoubtedly a victory for sexual and reproductive rights in the region – and for human rights more broadly. But there are two lessons from Chile that deserve particular attention: one to be emulated and one to be avoided.
The lesson to emulate is that the constitutional guarantee of “protection of the unborn,” is not incompatible with a woman’s right to decide to terminate a pregnancy. The Chilean Court affirmed it cannot address the ontological status of the yet unborn, because it is not a constitutional question: rather, it evokes variable and incomparable perspectives, including metaphysics and religion, that exceed the domain of the judiciary. For that reason, the majority limits its analysis to a legal interpretation of the provision: duties of protection are distinct from the constitutional recognition of personhood. The Court thus simultaneously determines that the Constitution affirms an important legal interest in protecting the unborn, but that this protection is not comparable nor proportional to the protection of the “life of a person with full capacity, that is, a woman or a mother with a life project that is in full development in the world, in the social and family environment.”
According to the Court, the “gravity and drama” of the three circumstances encompassed by the bill justify maximizing protection of a woman’s constitutional right to life and do not thus unreasonably violate any legal interest of the unborn. The duty to protect the unborn can and should be circumscribed by the duty to protect the fundamental rights of the constitutional person, the pregnant woman. This understanding is also aligned, for example, with Brazilian constitutional jurisprudence which, in two landmark Supreme Court decisions – a 2008 decision on the use of frozen embryos in stem cell research and a 2012 decision on abortion in cases of anencephaly – confirmed that embryos and non-viable fetuses do not hold legal status as constitutional persons. This dialogue among courts is important for building a coherent regional framework regarding what fundamental rights are at stake in the abortion question.
On the other hand, the Chilean decision also presents a lesson of something to be avoided. The new law includes a conscientious objection clause that allows medical professionals to refuse to perform legal abortions if they believe it would violate their religious or moral beliefs. Originally, the law explicitly prohibited conscientious objection for institutions. However, the Court determined that this prohibition was unconstitutional because disallowing institutional conscientious objection would violate “freedom of association” and the autonomy of organizations. The Court affirmed that associations are also entitled to the right of freedom of thought and must be allowed to offer healthcare on a discretionary basis.
What the Chilean Justices do not seem to have anticipated is that allowing institutional conscientious objection is to allow institutional discrimination. Health facilities, like any other private actor that provides services related to social rights, cannot be allowed such unrestricted autonomy that they fail to respect basic human rights. Private institutional actors are accountable to the same Constitutional rights and international human rights obligations as public institutional actors. We would not allow any health facility to invoke religious beliefs to refuse to perform a blood transfusion for a patient. While conscientious objection is already an extremely sensitive topic when it involves an individual, at least those objections can be accommodated under strict regulations, especially if there is a way to refer the patient to another professional and guarantee against delays or obstacles. But where a whole institution objects, there is rarely the same possibility for accommodation. Moreover, such objections undermine institutional obligations to address essential health needs and provide healthcare.
The Court’s decision has already allowed for further deregulation of the conscientious objection exception. In December 2017, the federal government established a series of formal requirements, including, for example, that private institutions which had agreements with the government to provide gynecological services could not object to providing legal abortions. However, after the subsequent change in the presidency and after pressure from institutions who sought to be exempted, the government published a new protocol which eliminated these restrictions and allowed them to deny abortion and related services. This is particularly concerning if we consider that private institutions in Chile receive significant funding from the government to provide essential health services. Thus, the deregulation allows institutions being subsidized to offer discriminatory health care. It may mean that Chilean women will have their right granted by the law, but not by health services.
The path toward human rights litigation, especially sexual and reproductive rights litigation, is rarely linear. While the decision in Chile reinforces the centrality of women’s rights in a Constitutional democracy, it has also opened the door to the possible undermining of women’s right to access essential services. But what is undeniable is that the decision offers the region a strong precedent as well as valuable lessons for advancing the abortion question.
Suggested Citation: Gabriela Rondon, Sinara Gumieri and Luciana Brito, I-CONnect Symposium–The Chilean Constitutional Court’s Abortion Decision–Lessons for Neighboring Latin American Courts, Int’l J. Const. L. Blog, Aug. 3, 2018, at: http://www.iconnectblog.com/2018/08/i-connect-symposium-the-chilean-constitutional-courts-abortion-decision-lessons-for-neighboring-latin-american-courts