After having a full abortion ban for over 100 years and the lowest maternal mortality rate in Latin America, Chile created three non-punishable exceptions to its abortion ban in September of 2017, after the Senate approved, by a slim margin, legislation introduced by President Michelle Bachelet. Chile’s former abortion ban allowed only indirect, not direct abortion in situations of risk to the mother’s life. The new law amended Chile’s Criminal and Health Codes to create exemptions to criminal abortion bans under three relatively narrow grounds: a) risk to the mother’s life, b) fetal pathology that is “incompatible with extrauterine life, in any case, of a lethal nature” and c) rape up to 12 or 14 weeks gestation. The Constitutional Court upheld most of the bill, with the exception of restrictions on conscience rights, by a six to four majority.
Prior to the passage of the bill, the Inter-American Commission on Human Rights had urged Chilean legislators not to delay in passing President Bachelet’s proposed legislation given that her term was about to expire, as it is currently about to with last week’s election of Sebastián Piñera. Upon the passage of the bill, a group of congresspersons and senators challenged the legislation as unconstitutional invoking Chile’s constitutional article 19: “The law shall protect the life of the unborn.”
The Constitutional Court, however, found the right to life is “not absolute”, citing the Artavia v. Costa Rica judgment by the Inter-American Court of Human Rights and applied a proportionality test between women’s rights and a legally protected “interest” in prenatal life to conclude that women’s rights must, under the three circumstances in the bill, take precedence. The judgment also cited one of its previous decisions authorizing organ donation from brain dead patients to hold that, just as the definition of death was a matter for legislators to decide, the definition of life was also within historical legislative discretion.
Even though the judgment announced it would not deal with the ontological status of the unborn, it went on to declare that the unborn is not a person under the Constitution, albeit with only five out of ten Judges agreeing on the issue which may not be enough to create authoritative precedent, according to Chilean Law Professor Hernán Corral. The reasoning was based, among other things, on a part of the Constitution’s legislative history, on a “dynamic” rather than originalist constitutional interpretation and on the idea that the nasciturus cannot benefit from the legal status of personhood until birth. Previous constitutional precedent finding that the human fetus is a person under the Constitution was rejected.
Despite some broad statements on individual autonomy and women’s rights, the Constitutional Court clarified that abortion continued to be a crime in Chile. One of the judges in the majority, Domingo Hernández, categorically rejected the idea that the law could be interpreted as creating a constitutional right to abort. In addition, the judgment struck down the legislation’s prohibition of conscientious objection by institutions and by non-professional individual personnel in health care facilities.
Despite its reference to the Artavia judgment, the judgment held that Inter-American Court decisions are not binding on the Chilean Constitutional Court, particularly in areas where there is a lack of uniformity, such as conscience rights. It is also worth mentioning that the Act contains a couple of provisions that went unchallenged, such as one prohibiting the donation or sale of human tissue for any purpose that did not relate to the termination of pregnancy, which could have been inspired by the organ trafficking scandal surrounding Planned Parenthood in the United States.
Notwithstanding the Constitutional Court’s rejection of a strict application of the control de convencionalidad doctrine, the Inter-American Commission celebrated the decision and encouraged other states in the region to follow in Chile’s footsteps invoking a supposed “right to voluntarily interrupt a pregnancy in certain circumstances”.