—Benjamín Alemparte, Assistant Professor of Constitutional Law, University of Chile
On 7 July 2026, a group of right-wing Chilean legislators introduced a bill amending the informed-consent provisions governing lawful abortion under Article 119 of the Health Code. Presented as a measure to improve medical information, it would require physicians to inform women whether embryonic or fetal cardiac activity is detectable and offer them the opportunity to hear it where technically possible. Moreover, physicians would have to provide what the bill describes as an “objective” explanation of that cardiac activity and record the woman’s response in the medical file. Although the proposal states that she may freely decline the offer, it immediately adds that the physician must refuse to perform the abortion if “that situation” occurs—a formulation that appears to make refusal itself a ground for denying lawful medical care.
The proposal exemplifies an increasingly common constitutional strategy: rights are retrenched through procedural requirements presented as safeguards of autonomy. This leaves Chile’s statutory framework governing lawful abortion formally untouched while making access more burdensome, emotionally charged and legally uncertain. The proposal is better understood against what comparative abortion scholarship has called the “procedural turn.” The studies collected by Rebecca J. Cook, Joanna N. Erdman and Bernard M. Dickens show that once abortion is made lawful on specified grounds, access depends on how those grounds are administered: what information and documentation are required, who determines eligibility, and how professional discretion is structured. Procedure is therefore ambivalent: it can make a legal entitlement effective, but it can also restrict access without changing the entitlement itself. The Chilean proposal operates precisely within this regulatory space.
The bill also arrives at a politically charged moment. José Antonio Kast assumed the presidency in March 2026 after a campaign centred on public security, migration and economic recovery that strategically avoided reopening Chile’s most divisive moral debates. That approach suggested that the three-grounds abortion framework established in 2017 would not become an immediate legislative priority. Yet only weeks after the new conservative administration took office, nearly seventy government-aligned legislators formed a pro-life caucus committed to promoting legislation in defence of “life from conception.” This bill is the first major initiative to emerge from that effort.
The proposal does more than modify the rules of informed consent. It transforms medical information into an instrument of moral coercion and, in doing so, illustrates a broader constitutional phenomenon: the retrenchment of rights through procedural regulation.
Why This Is Not Informed Consent
Informed consent exists to protect autonomous decision-making by enabling patients to make medical choices on the basis of relevant information, free from coercion or manipulation. This proposal pursues a different objective. It uses information to influence the decision itself. It states that a woman may “freely decline” the opportunity to hear embryonic or fetal cardiac activity, yet then provides that the physician must refuse to perform the abortion if “that situation” occurs. In its ordinary meaning, the supposedly optional procedure becomes a condition of access to lawful medical care. The option is free only in name.
This approach is also incompatible with Chile’s informed-consent regime. Article 119 of the Health Code requires information to be truthful, complete and objective, while expressly providing that its delivery must never be aimed at influencing the woman’s decision. The proposal moves in the opposite direction. It isolates a single emotionally charged biological fact, converts it into an auditory experience, requires physicians to deliver a prescribed offer and potentially authorises the denial of care. This structure favours emotional persuasion over autonomous deliberation.
The bill’s own wording confirms that this objective is deliberate. Although it repeatedly insists that the proposal is not ideological, it describes abortion as the death of a “baby” and asserts that nothing could be less ideological than allowing a woman to hear its heartbeat before the procedure. The purpose of the disclosure is to produce a particular moral response rather than simply communicate medical information.
Taken together, these requirements turn the informed-consent process into an additional obstacle to accessing lawful abortion. Rather than prohibiting abortion outright, conservative governments seek to make its lawful exercise progressively more burdensome through procedural obligations, documentary requirements and emotionally coercive interventions.
The bill is objectionable not only because of what it requires, but because of the circumstances in which it operates. Chile permits abortion only in three circumstances of exceptional vulnerability: where the woman’s life is at risk, where the fetus suffers from a lethal condition incompatible with independent extrauterine life, and where the pregnancy results from rape (Article 119(1)–(3) of the Health Code). Instead of responding to those circumstances with care and protection, the proposal inserts an additional emotional burden into an already difficult decision. The objection lies not simply in its opposition to abortion, but in its use of suffering as a legislative technique.
The Constitutional Settlement of 2017
The bill is constitutionally significant precisely because it does not seek to prohibit abortion outright. Instead, it attempts to erode the constitutional settlement reached in 2017 through ordinary legislation.
Chile’s 1980 Constitution does not expressly prohibit abortion. Article 19 (1) guarantees the right to life while separately providing that “the law protects the life of the unborn.” Rather than constitutionalising an absolute prohibition, the provision entrusts the legislature with determining how prenatal life should be protected. For much of Chile’s modern history, that protection took the form of criminal prohibition, although therapeutic abortion remained lawful until 1989, when the dictatorship enacted a complete statutory ban.
That framework changed in 2017 with Law No. 21,030. More importantly, its constitutionality was confirmed by the Constitutional Court in Rol No. 3729-17, a decision that established the constitutional understanding of prenatal protection that has governed the three-grounds framework since 2017. Rejecting the argument that Article 19 (1) required an absolute criminal prohibition, the Court held that the Constitution distinguishes between the constitutional rights of the pregnant woman and the legal protection afforded to the unborn. Because the Constitution entrusts prenatal protection to “the law,” the legislature retains discretion to determine how that protection is realised, provided that neither prenatal life nor women’s fundamental rights are treated as absolute. Constitutional protection, the Court made clear, does not necessarily require criminal prohibition.
The result was neither unrestricted reproductive autonomy nor constitutional recognition of fetal personhood. It was a constitutional settlement that preserved the protection of prenatal life while recognising that, in exceptional circumstances, the legislature may reconcile that interest with the fundamental rights of pregnant women. That balance has governed Chile’s abortion framework since 2017.
The Failed Constitutional Attempts to Replace It
This settlement, however, did not end political disagreement over abortion. The issue re-emerged in Chile’s two successive constitution-making processes, which offered opposing alternatives to the 2017 framework.
The first process, led by the Constitutional Convention, moved toward the constitutionalisation of reproductive autonomy. The proposed Constitution recognised sexual and reproductive rights, including the right to the voluntary interruption of pregnancy in accordance with the law (Article 61). Had it been adopted, reproductive autonomy would have acquired explicit constitutional status, displacing the legislative compromise reached in 2017. The proposal, however, was rejected in the September 2022 plebiscite.
The second process pursued the opposite objective. Dominated by José Antonio Kast’s Republican Party, the Constitutional Council sought to reinforce constitutional protection of prenatal life. It replaced the existing reference to “the unborn” (el que está por nacer) with “who is yet to be born” (quien está por nacer) (Article 16.1). Although linguistically modest, the change was widely understood as strengthening the constitutional personification of the unborn and providing a firmer basis for restricting the existing abortion framework or resisting its future liberalisation. Voters also rejected that proposal in December 2023.
Taken together, the two processes produced an unexpected outcome. Chilean voters rejected both the constitutionalisation of reproductive autonomy and the constitutionalisation of stronger fetal protection. Whatever the political reasons behind those results, neither project displaced the governing framework established in 2017. The present bill shows that the constitutional conflict has not disappeared; it has merely shifted institutional arenas—from constitution-making to the regulation of informed consent.
Why the Comparative Law Argument Fails
The proposal also invokes comparative law to justify its approach. The bill relies almost exclusively on abortion regulations adopted in a handful of conservative U.S. states—notably Kentucky, Texas, Arizona, Georgia and Mississippi—to support requiring physicians to communicate embryonic or fetal cardiac activity and offer women the opportunity to hear it before an abortion.
Yet this is not comparative constitutional reasoning. It is a selective borrowing from one side of one country’s deeply contested and polarized constitutional debate. The comparative argument fails for at least three reasons. First, the bill never explains why a handful of restrictive U.S. states are appropriate comparators for Chile while ignoring constitutional democracies that regulate informed consent and reproductive autonomy differently. Comparative analysis requires justified case selection; the proposal simply assumes that those jurisdictions provide the relevant model.
Second, it detaches the regulations from the constitutional framework that gave them legal meaning. The ultrasound and heartbeat requirements on which the bill relies developed under the doctrine established by the U.S. Supreme Court in Planned Parenthood v. Casey, which permitted mandatory disclosures provided that they were truthful, non-misleading and did not impose an undue burden. That framework was abandoned in 2022 by Dobbs v. Jackson Women’s Health Organization, which returned primary authority over abortion regulation to the states. The Chilean proposal therefore borrows regulatory techniques while disregarding both their original constitutional setting and its subsequent doctrinal transformation.
Third, the bill presents U.S. law as considerably more settled than it is. It highlights decisions upholding compelled ultrasound disclosures while overlooking contrary authority, most notably Stuart v. Camnitz, in which the Fourth Circuit held that a comparable requirement unconstitutionally compelled physicians to communicate the state’s ideological message. Rather than engaging with a contested body of constitutional doctrine, the proposal assembles authorities that support a predetermined legislative outcome.
What Kast’s Response Will Reveal
Although the proposal is not formally a government initiative, it was introduced by legislators from the National Libertarian Party, President Kast’s Republican Party, and the traditional right. His response will therefore be constitutionally revealing. Whether the administration endorses the bill, distances itself from it, or simply allows it to advance without objection will indicate whether it regards the 2017 settlement as the enduring framework for abortion policy or merely as a temporary accommodation to be progressively eroded through ordinary legislation.
More broadly, the bill demonstrates that constitutional conflicts do not necessarily end when constitution-making fails; they migrate to other institutional arenas. Having failed to redefine Chile’s abortion framework through constitutional replacement, sectors of the governing coalition now seek to contest it through the regulation of informed consent.
Suggested citation: Benjamín Alemparte, Hearing the Heartbeat: How Informed Consent Can Become a Tool of Rights Retrenchment, Int’l J. Const. L. Blog, Aug. 27, 2026, at: http://www.iconnectblog.com/hearing-the-heartbeat-how-informed-consent-can-become-a-tool-of-rights-retrenchment/