This summer, Chile legalized abortion for the first time since 1989. The legislation, slated to take effect in January 2018, legalizes abortion in cases of “risk to the mother’s life,” “fetal malformation incompatible with life,” and rape. The scope of these conditions — how they will be applied — remains to be seen.
A case testing the constitutionality of the legislation was filed in the Constitutional Tribunal of Chile, which voted 6-4 on August 21 to allow the legislation to go into effect.
But, in opinions of approximately 300 pages released on August 28, a majority of the Tribunal rejected a Roe v. Wade path to abortion.
A majority of the judges refused to create a constitutional right to abortion that would be immune from legislative limits or correction. The legislature could revise or repeal the new law at some point in the future.
No majority of justices denied a right to life of the unborn. Instead, a majority recognized the unborn child to be a living human being. The justices left in place a 2007 decision respecting the right to life of the unborn. Only a minority of justices referred to the unborn as merely “a state interest” or an “object of protection.”
A majority of justices are apparently concerned about the breadth of the conditions in the law and might revisit the issue if they are not adequately enforced.
In addition, a 7-3 majority of the justices recognized a broad, constitutional right of conscientious objection to abortion, to “opt-out.” This right extends to medical staff who might be involved in an abortion and certain organizations, including hospitals.
Perhaps some justices were influenced by the experience during the country’s abortion prohibition since 1989, when the maternal mortality rate dropped dramatically, as this 2012 study and this 2014 studydocument. As of 2012, Chile enforced a strict abortion prohibition and had the lowest maternal mortality ratio in Latin America.
By refusing to broaden the legislature’s legalization of abortion in Chile, the Tribunal may avoid some of the unintended or unanticipated consequences that have flowed from the Supreme Court’s broad legalization of abortion in the U.S.
First and foremost, by leaving the issue to the legislature, the Tribunal will not become the “national abortion control board,” as the Supreme Court did in Roe v. Wade by issuing detailed standards that control every abortion clinic from coast to coast.
The U.S. has also suffered from a regular pattern of substandard conditions and providers in abortion clinics. A 200 page report released by Americans United for Life in December 2016 documented that 227 abortion providers in 32 states were cited for more than 1,400 health and safety deficiencies between 2008 and 2016.
When abortion lowers the “cost” of sexual activity, women and men take more risks, which fall most heavily on women. Contrary to conventional wisdom, “if abortion is cheap, intercourse will be more frequent, and…may generate more unwanted pregnancies, not all of which will be aborted. This should help us to understand the combination of cheap contraceptives, frequent abortions, and yet a high rate of unwanted births in our society” as 7th U.S. Circuit Court of Appeals Judge Richard Posner has observed.
As Erika Bachiochi, a legal scholar and fellow at the Ethics & Public Policy Center, has described the outcome:
“The rate of nonmarital births over the last several decades has increased most dramatically among poor women, for whom the attitudinal decoupling of sex and childbearing and of childbearing and marriage, ushered in by this new sexual insurance policy, has been most acute.”
There is also a growing body of international peer-reviewed medical studies, which have found an increased risk of pre-term birth and mental trauma. This literature includes studies from dozens of countries. “Increased risk” doesn’t mean causation by itself, but may eventually lead to a finding of causation when additional factors are taken into consideration.
And numerous studies have found an association between a history of induced abortion and substance abuse. Although abortion is marketed as providing “control,” the reality sometimes involves the loss of control of psychic health and relationships.
Abortion is typically marketed as a snapshot — the immediate aftermath — when the reality can only be captured like a video, what led to the abortion decision and the long-term impact on physical health, mental health, and relationships.
Chile will have to closely examine the video to get a realistic understanding of what it has unleashed.
Clarke D. Forsythe is senior counsel at Americans United for Life and author of “Abuse of Discretion: The Inside Story of Roe v. Wade” (Encounter Books 2013). He co-authored a brief for Americans United for Life which was filed in the Constitutional Tribunal of Chile.
Originally published in The Hill, on September 8, 2017.