Introduction to I-CONnect Symposium–The Chilean Constitutional Court’s Abortion Decision: Five Perspectives

[Editor’s Note: I-CONnect is pleased to feature a special symposium as we approach the one-year anniversary in August of the Chilean Constitutional Court’s abortion decision. The symposium will feature six parts, including this Introduction. We are very grateful to Professor Marta Rodriguez de Assis Machado for convening this important symposium for the benefit of the I-CONnect community and indeed for the entire field.]

—Marta Rodriguez de Assis Machado, Full Professor of Law at the Getulio Vargas Foundation (FGV) Law School, São Paulo, Brazil

Last year in August 2017, the Chilean Constitutional Court ruled on the constitutionality of Bill No. 9895-11. The Bill sought to decriminalize the voluntary interruption of pregnancy on three legal grounds: when the woman is at “risk to life”; when the embryo or fetus has a congenital pathology that is incompatible with independent extrauterine life; and when the pregnancy is the result of a rape. The law had been approved in Parliament one year prior, with strong support from President Michelle Bachelet and feminist social movements that have for years campaigned against the country’s very strict legislation on the issue–one of the few countries in the world at the time that still prohibited abortion in all circumstances.

In a new front in the battle over the constitutionalization of abortion in Latin America, some Senators brought before the Court two petitions challenging the constitutionality of the Bill. The petitioners based their claim mainly on Article 19, No. 1, Paragraph 2 of the Chilean Constitution, which protects the life of the unborn. They also questioned the parts of the Bill that regulated conscientious objection, allowing it for individual doctors and medical staff, but obliging medical institutions to guarantee that the woman will have access to the procedure carried out by non-objecting professionals.

In a majority decision, the Court dismissed the petition and recognized the constitutionality of each of the three grounds.

According to the Court, the unborn cannot be protected without regard to the rights of women. Moreover, the Constitution does not authorize the State to endanger the life of the pregnant woman, nor does it require her to bear duties beyond what is required of any other person.

On the other hand, the Court partially accepted the objection raised by the petitioners regarding conscientious objection by medical institutions. According to the Court, conscientious objection can legitimately be raised by legal entities or private associations. The Court extended to such institutions the same freedom of thought that the Constitution grants to individuals.

There remains much to be discussed both on the importance of the ruling as a judicial precedent and on the hurdles to its implementation.

As we approach the one-year anniversary of the Court’s judgment, we are pleased to bring together five different views on the decision, addressing its progressive features and also its downsides, ambivalences and challenges. We are thankful to the following scholars for their contributions to this special symposium. Their perspectives will be published in each of the five days ahead.

1. Blanca Rodriguez-Ruiz, University of Seville, Spain
2. David Kenny, Trinity College Dublin, Ireland
3. Gabriela Rondon, Sinara Gumieri and Luciana Brito, researchers at Anis – Institute of Bioethics, Brazil
4. Isabel C. Jaramillo Sierra, coordinator of the Research Group on Law and Gender (IDEGE), Universidad de los Andes, Bogotá, Colombia. Founding member of RED-ALAS (www.redalas.net)
5. José Manuel Díez de Valdez, Director of the Centre of Constitutional Justice, Universidad del Desarrollo, Chile

We are also extremely grateful to the International Reproductive and Sexual Health Law Program of the University of Toronto for providing an unofficial English translation of the full decision, freely available online here. I am grateful as well to Linda Hutjens, Sergio Verdugo and Veronica Undurraga who helped to put this symposium together.

The full decision and associate materials are available in Spanish at the following weblinks:

1. Full decision in Spanish: http://www.tribunalconstitucional.cl/expediente?rol=3729wsdefrtg
2. Summary in Spanish: https://www.law.utoronto.ca/utfl_file/count/documents/reprohealth/chile-2017-sintesis-spanish.pdf
3. Accompanying documents: http://www.tribunalconstitucional.cl/expediente?rol=3729-CEwsdefrtg
4. Other submissions: http://www.tribunalconstitucional.cl/expediente?rol=3729-CSwsdefrtg

Suggested Citation: Marta Rodriguez de Assis Machado, Introduction to I-CONnect Symposium–The Chilean Constitutional Court’s Abortion Decision: Five Perspectives, Int’l J. Const. L. Blog, July 31, 2018, at: http://www.iconnectblog.com/2018/07/introduction-to-i-connect-symposium-the-chilean-constitutional-courts-abortion-decision-five-perspectives

Marta Rodriguez de Assis Machado is also a Researcher at the Brazilian Centre of Analysis and Planning – CEBRAP; Global Fellow at the Centre on Law and Social Transformation, Norway; and Fellow at the International Reproductive and Sexual Health Law Program, University of Toronto.