I-CONnect Symposium–The Chilean Constitutional Court’s Abortion Decision–Finding and Losing Women in Abortion Law Reform: The Case of the Chilean Constitutional Decision on Law 21030

[Editor’s Note: This is Part IV 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, Part II is available here, and Part III is available here.]

—Isabel C. Jaramillo Sierra, Universidad de los Andes, Bogotá

In August 2017, the Chilean Constitutional Tribunal [CCT] ruled in favor of the abortion reform introduced by Law 21030 [the Law]. The Law resulted from a long and difficult campaign led to a large extent by President Bachelet herself. How hard the struggle was is patent in the very fact that the day after its approval, one fourth of the Republic’s Senators asked the CCT to repeal it for violating the Chilean Constitution. At the heart of the debate was the interpretation of article 19 in the Chilean Constitution and the powers it granted to the legislator concerning the protection of “life”. For the plaintiffs, the protection of “life” demands the deployment of state action, and prevents any changes in legislation that represents a step forward in that direction –principle of progressive protection of rights.

The CCT upheld the Law against these charges holding, among others, that women have human rights that need to be balanced against the duty to protect life that the article establishes (TRIGESIMOQUINTO). The decision dedicates several pages to explaining that the Chilean Constitution embraces gender equality and non-discrimination, and presents a series of measures adopted by the legislative and executive branch to materialize this commitment. The CCT highlights duties regarding elimination of violence against women, equal juridical capacity, and the elimination of stereotypes as new emphasis on gender equality derived from the country’s international obligations (TRIGESIMOOCTAVO). The decision, more importantly, mentions women’s rights before even entering the debate about the right to life and the duties it imposes on the state (CUARENTA).

Nonetheless, the Court also extended the cases in which conscientious objections would be allowed (RESOLUCION) and kept silent about the big burdens Congress placed on women to access legal abortions by the very law that was subjected to inspection (CENTESIMO y siguientes). Thus just as soon as the decision found women, it made them invisible again: first, it granted those that objet to abortion more leverage in the system; second, it sustained restrictions that we know will prevent women from actually accessing legal abortions. Neither of these decisions was mandated by the Constitution, rather, they illuminate the way we still need to travel in introducing a gender perspective in judicial decision making.

To conclude that the possibilities to object to abortion should be extended to individuals who were not directly involved in the termination of the pregnancy, which is exclusively within the reach of medical doctors, and to institutions, both public and private, the CCT first presented a map of available alternatives and then provided an argument derived from the Constitutional text for the alternative it chose. As opposed to the careful comparative work of other sections, here it merely cites the case of Spain, which has the same scheme the CCT finally adopted, and explains that the Inter-American Court of Human Rights has explicitly stated that institutions cannot be understood as having a conscience and therefore as objectors. As to the position of the Inter American Court, it points out that it will not follow precedent on this topic because it does not believe the precedent to be as strong as it need be. That is all the explanation given. To extend the objection it merely notes that the Constitution does not establish limits to the right and that individuals should not be means to an end; in this case, those participating in the health system and opposing abortion. Again, the impact this may have on women and the protection of their rights is not even marginally mentioned. This part of the decision is an exercise in which legal theorists of the end of the nineteenth century called an “abuse of deduction”: from the fact that individuals are guaranteed the right to freedom of conscience and institutions are guaranteed protection under the constitution, the CCT concludes that at no matter what cost to the rights of women, an ample right to conscientious objection should be guaranteed by law.

The Court was also oblivious to the rights of women when it examined each of the indications without any reflection on the burdens women would face to access legal abortions. In neither case did the Court discuss whether having to get two or more doctors to decide on a case and needing to go through accompaniment were excessive in light of the existing evidence from the implementation of indications in countries such as Peru, Mexico, Colombia and Argentina. The Colombian case, which the CCT cites more than once, is illustrative of these obstacles: even if the Colombian Constitutional Court reduced proof of the facts allowing for abortion, it has found that doctors will go out of their way to increase those requirements and make it almost impossible for women to obtain abortions in the first fourteen weeks of pregnancy. The Paulina case, that involved the failure of the Mexican State to provide a minor with a legal abortion in a case of rape; and the KL v. Peru case, that involved the failure of the Peruvian State to guarantee access to legal abortion in the case of an anencephalic fetus, also speak to the hurdles that women face in materializing their right to legal abortion. The fact that the CCT was only adjudicating on the “constitutionality” of the law, and not its efficacy, seems to me an excuse more than a reason. The evidence is just too overwhelming to justify not even addressing this issue. In addition, the CCT in the past had taken into consideration the operation of the law to decide on its constitutionality: when deciding on the differences in health insurance payments, the Court carefully studied the economic reasons submitted by insurers and by academics to make a decision that ultimately favored women (Tribunal Constitucional. Rol 976-07-INA. Sentencia de 26 de junio de 2008).

Finding women in the law, in such a deeply biased system, is certainly more work than proceeding as usual. In this sense, the CCT’s acknowledgement of women’s rights and its effort at providing a fair representation of their reach is certainly commendable. But I am convinced that excuses for not doing all the work necessary are less credible today than twenty years ago. As legal scholars, economists, sociologists, psychologists, etc., women have produced the data and arguments to sustain different processes of decision making. We deserve that this information be taken seriously. We deserve to be seen, not only in part, but fully.

Suggested Citation: Isabel C. Jaramillo Sierra, I-CONnect Symposium–The Chilean Constitutional Court’s Abortion Decision–Finding and Losing Women in Abortion Law Reform: The Case of the Chilean Constitutional Decision on Law 21030, Int’l J. Const. L. Blog, Aug. 4, 2018, at: http://www.iconnectblog.com/2018/08/i-connect-symposium-the-chilean-constitutional-courts-abortion-decision-finding-and-losing-women-in-abortion-law-reform-the-case-of-the-chilean-constitutional-decision-on-law-21030

Isabel C Jaramillo Sierra is Full Professor of Law, coordinator of the Research Group on Law and Gender (IDEGE), Universidad de los Andes, Bogotá, and founding member of RED-ALAS (www.redalas.net).