Overview of the legality and prevalence of abortions in Chile
Chile's abortion laws have undergone significant changes in recent years. Prior to 2017, Chile had one of the strictest abortion laws globally, prohibiting the practice altogether.[1] However, since then, abortion has become legal in certain circumstances.
Currently, abortion is legal in three situations: when the life of the mother is at risk, when the fetus is not viable, and in cases of rape during the first 12 weeks of pregnancy (or 14 weeks if the woman is under 14 years old).[2] Despite this, some doctors still refuse to perform abortions, particularly in cases of rape.[3]
In 2006, activists successfully lobbied then-president Michelle Bachelet and the Coalition of Parties for Democracy to legalize emergency contraceptives in response to concerns about the rising number of teen pregnancies.[4] In 2010, they successfully campaigned for free emergency contraceptives at public health centers for anyone over the age of 14 without requiring parental permission.[4]
In August 2017, the National Congress approved a bill legalizing abortion, which went into effect a month later[2] after surviving a constitutional challenge from conservative opponents.[5][6][7] In January 2018, both public and private sector medical coverage for abortion became accessible.[8][9]
In November 2021, the Chamber of Deputies of Chile voted down a bill that would have decriminalized abortion at 14 weeks.[3] Additionally, in 2022, a proposed new constitution that contained provisions for reproductive rights and the legalization of abortion was put to a referendum in Chile. However, the proposed constitution was not approved by the majority of Chilean voters.[10]
Legal background
"The Law of God says 'Thou shalt not kill.' Nothing can be more unnatural than punishing with death the defenseless, but person, who is yet to be born. Aborting is killing, even if the corpse is very small."
In 1931, the Health Code introduced a provision allowing therapeutic abortion,[1] permitting women whose lives were at risk to undergo the procedure with the approval of two doctors.[1] However, this provision was abolished by the military dictatorship on September 15, 1989, citing advancements in medicine that made it "no longer justifiable."[12]
The current laws regarding abortion are codified in the penal code under articles 342 to 345, which address "Crimes and Offences against Family Order, Public Morality and Sexual Integrity."[13] According to these laws, illegal abortions are punishable by up to five years of imprisonment for the person performing the procedure, and up to ten years if violence is used against the pregnant woman. If a pregnant woman consents to or performs an illegal abortion on herself, she may face up to five years in prison. Additionally, a medical doctor practicing an illegal abortion may be sentenced to up to 15 years of imprisonment. The country's constitution, in article 19-1, states that "the law protects the life of those about to be born." Prior to 2022, a two-thirds majority in each chamber of the Chilean Congress was required to amend this article.[14]
Since 1990, legislators have submitted 15 bills related to abortion for discussion in Congress, with 12 bills presented in the Chamber of Deputies and three in the Senate. Approximately half of these bills aimed to increase existing penalties or create legal barriers to hinder the legalization of abortion. Two other bills suggested the construction of monuments to commemorate the "innocent victims of abortion." Four bills have requested allowing abortion when the mother's life is at risk, and one bill proposed it in cases of rape. Currently, nine bills are under review, while one has been rejected. Five others have been archived, meaning they have not been discussed for two years. Two identical bills requesting the reinstatement of therapeutic abortion as it was before 1989 are currently under review in the Chamber's Medical Commission. The first bill was submitted on January 23, 2003, and the latest on March 19, 2009.[15]
In November 2013, during the administration of conservative President Sebastián Piñera, a law was enacted declaring March 25 as the "day of those about to be born and of adoption."[16]
Legalization
On January 31, 2015, President Michelle Bachelet submitted a draft bill to Congress with the aim of decriminalizing abortion in specific cases. The proposed cases included situations where the mother's life is at risk, when the fetus will not survive the pregnancy, and in instances of rape during the first 12 weeks of pregnancy (18 weeks if the woman is under 14 years old).[17] On August 2, 2017, Congress approved the bill, reducing the allowable timeframe to 14 weeks in the case of a girl under 14 who has been raped.[18] A request from the opposition to declare the law unconstitutional was rejected by the country's Constitutional Court in a 6-4 decision on August 21, 2017.[5][6][7]
The court ruling allowed health facilities to refuse to provide abortions by claiming "conscientious objector" status, although the bill, as approved by Congress, granted this right only to individuals.[5][6] President Bachelet promulgated the law on September 14, 2017,[19] and it was published in the country's official gazette on September 23, 2017.[2] The Ministry of Health published a protocol for "conscientious objectors" on January 27, 2018.[20] Subsequently, medical coverage in both the public and private sectors became available on January 29, 2018.[8][9]
On March 23, 2018, the incoming administration of Sebastián Piñera made modifications to the protocol, allowing private health institutions receiving state funds to invoke conscientious objection.[21] However, in May 2018, the Office of the Comptroller General declared both versions of the protocol illegal.[22] In October 2018, the government published an amended protocol, reinstating the prohibition on private health institutions receiving state funds from invoking conscientious objection.[23] Nevertheless, in December 2018, the Constitutional Court, acting on a request from a group of lawmakers supporting the sitting administration, deemed that specific section of the protocol unconstitutional.[24][25]
Women's health
An amendment made by the Chilean government to section 119 of the Health Code in 1989 stated that there could be no actions taken that would induce an abortion. This amendment was made due to the belief that with medical advances in maternal care, abortion was no longer seen as a necessary means of saving a woman's life.[26]
Concern over high rates of abortion and high maternal mortality rates led the Chilean government to launch a publicly funded family planning program in 1964.[26][27] Deaths due to illegal abortions dropped from 118 to 24 per 100,000 live births between 1964 and 1979.[26]
There was also a statistically significant decrease in maternal deaths due to abortion from 1990 to 2000.[28] Experts attribute the decline in hospitalizations due to abortion during this period to the increased use of sterilization and antibiotics by illegal abortion providers, the increased availability of the abortifacient drug misoprostol, and the increased use of contraception.[27] In terms of accessibility, in 2002 it was noted that most of the family planning services were offered to married women.[26]
A 2015 study by the Chilean epidemiologist Elard Koch has shown that the decreasing trend in maternal deaths due to abortion has continued through 2009.[29] These results challenge the common notion that less permissive abortion laws lead to greater mortality associated with abortion. Koch states that the increases in women's education and in community support programs for women with unplanned pregnancies have contributed to the reduction of induced abortions and maternal deaths in Chile.
In the period 2000 to 2004, abortion was the third leading cause of maternal mortality in the country, accounting for 12% of all maternal deaths.[30] While there are no accurate statistics, it is estimated that between 2000 and 2002 there were between 132,000 and 160,000 abortions in the country.[31]
A 1997 study found that the majority of eighty women prosecuted in Santiago for having an abortion were young, single mothers, and that many were domestic workers who had moved to the city from rural areas. It also found most of the women were reported to authorities by the hospital at which they sought treatment for their complications, and had no legal representation, or were defended by inexperienced law students.[32]
Public opinion
A July 2006 MORI survey found that 26% of Chileans believed that abortion is "justified", up from 18% in 1990.[33]
A July 2008 all-female nationwide face-to-face poll by NGO Corporación Humanas found that 79.2% of Chilean women were in favor of decriminalizing abortion when the life of the pregnant woman is at risk; 67.9% said it was urgent to legislate on the matter. According to the study, 74.0% of women believed abortion should be permitted in cases of rape, 70.1% in instances of fetal abnormality and 24% in all cases a woman decided it was appropriate.[31]
A March 2009 nationwide telephone poll published by La Tercera newspaper found 67% were against abortion, 19% in favor and 11% in favor only in extreme cases. Regarding abortion when the life of the pregnant woman is at risk, 48% were in favor, 3% only in extreme cases and 47% were against. In cases where the baby would be born with a defect or disease that would most likely cause the baby's death, 51% were against permitting an abortion, 45% were in favor and 2% only in extreme cases. 83% were against performing an abortion on an underage girl who had unprotected sex, while 14% were in favor. 57% were in favor of abortion in the case of rape, with 39% against it.[34]
An October 2009 opinion poll published by Universidad Diego Portales and covering 85% of urban areas of Chile found that a majority were against abortion when the pregnant woman or couple did not have the economic means to raise a baby (80%), when the pregnant woman or couple did not want to have a baby (68%), and when the fetus had a "serious defect" (51%). On the other hand, a majority were in favor of abortion when the pregnant woman's health is at risk (63%) and in cases of rape (64%).[35]
A January 2017 opinion poll conducted by CADEM found that 57% wanted abortion to be allowed in only a few cases, while 19% wanted abortion illegal in all cases and 22% wanted it legal in all cases.[36] A majority were in favor of abortion when the woman's health is at risk (76%), when the fetus does not have a high probability of survival (72%), and when a woman is pregnant as a result of rape (71%), while only a minority supported abortion in cases of a fetus having a physical disability (36%) and in cases of a mother not being able to afford a child (20%).
In August 2021, a Cadem survey showed that 46% of Chileans agree with abortion within 14 weeks, 52% disapprove of the measure and another 2% did not know or did not respond.[37]
Church influence
Around 66% of Chilean citizens identify themselves as members of the Catholic Church, and the government observes many Catholic holidays.[38] The Church has consistently maintained conservative views on abortion while supporting birth control as a means of preventing abortion.[39]
In the 1960s, the Church supported family planning initiatives aimed at reducing maternal mortality rates and stemming the rapid population growth of the time.[39] During the Christian Democratic government of the 1960s, the Church supported the use of contraceptive pills.[39] With the military coup of Augusto Pinochet, there was a return to a new conservative approach in the Catholic Church during the 1980s and 1990s, which is argued to still be strong today.[40]
Today, Catholic arguments in the abortion debates often cite Pope Paul VI's Humanae vitae, an argument that asserts that there should be no unnatural intervention in family building between a man and a woman. This argument is mainly used against abortion but has also been used as an argument against birth control.[40] However, this argument is not the sole view of Catholics in Chile. While the majority of Catholic leaders do not support abortion or contraceptives, there are arguments that find that practicing sensus fidel or simply being faithful is enough and that Humanae vitae does not accurately reflect the necessity of modern-day practices.[40]
There are two important conservative Catholic groups that influence modern-day abortion dialogue:
Opus Dei is a Catholic organization that was formed in 1928 by St. Josemaría Escrivá de Balaguer y Albás. Opus Dei has a rigid structure to its approach towards Catholic practice and is against abortion. It has been criticized for aggressively recruiting elites, given that it was formed with highly influential and educated members. Opus Dei continues to enjoy the support of the Vatican.[41]
The Legionaries of Christ is a Catholic organization formed in 1941 by Marcial Maciel, a controversial figure who was asked by Pope Benedict XVI to step down from his priesthood duties in 2005 in light of accusations that he had committed abuse against minors. The Legionaries of Christ are known to recruit members and have influence in elite business sectors in Chile.[40]
These two groups are thought to have influence in more elite circles in Chile which then influence public opinion on abortion as well as policies regarding abortion access.[40]
^Casas Becerra, Lidia (May 1997). "Women prosecuted and imprisoned for abortion in Chile". Reproductive Health Matters. 5 (9): 29–36. doi:10.1016/S0968-8080(97)90003-3.
^"Archived copy"(PDF). www.cadem.cl. Archived from the original(PDF) on 2 February 2017. Retrieved 13 January 2022.((cite web)): CS1 maint: archived copy as title (link)
^ abcdeAlvarez Minte, Gabriela (2017) The conservative resistance against women’s bodily integrity in Latin America : the case of Chile. [Thesis] (Unpublished) PhD_gabriela_alvarez_minte.pdf (bbk.ac.uk)
