Last August, I had the opportunity to testify before the Constitutional Tribunal in Chile, my home country, in support of a landmark law that decriminalized abortion in three circumstances. In my testimony before the court, I spoke about how Chile’s total abortion ban, in effect for 28 years, undermined women’s fundamental human rights.
I later was in the packed courtroom to hear arguments from other expert witnesses. Many people have strong, deeply held views on abortion. But the main question before the court was whether Chile’s constitutional protection for the embryo or fetus could be reconciled with allowing women to terminate their pregnancies in certain circumstances—for example, when the life of the woman or girl is at risk, or when the pregnancy resulted from rape. This question is a central part of the debate in El Salvador, where the constitution recognizes the right to life from conception, and the country bans abortion in all circumstances.
There is no doubt that El Salvador’s law on abortion undermines women’s rights under international law to life, to health, and to be free from cruel, inhumane, or degrading treatment. Yet some contend that moderating the full ban on abortion would be inconsistent with the country’s constitutional recognition of the right to life from conception.
That is not necessarily true. Rights can be protected in many ways. Prosecuting people who allegedly infringe on them is only one of them. But there are many others. Imprisoning women who terminate their pregnancies does little to reduce the number of abortions–it just makes them less safe. The World Health Organization estimates that the average rate of unsafe abortion is “four times higher in countries with more restrictive abortion laws than in countries with less restrictive laws.” Restrictive abortion laws are also associated with higher levels of maternal mortality.
Further, criminalizing abortion in extreme circumstances—such as when pregnancy is the result of rape—is an inhumane response that places women’s and girls’ lives and dignity at risk. In 2015, for example, a 10-year-old girl in Paraguay became pregnant after she was raped by her stepfather, but authorities denied her request for an abortion. At age 11, the girl gave birth. No one should be forced to continue their pregnancy in such circumstances, even if lawmakers believe that it can help protect life.
In the courtroom in Chile, Alfredo Etcheberry, my Catholic 85-year old former law professor, argued that Chile could legalize access to abortion in certain circumstances, while maintaining its constitutional protection for the embryo or fetus. In the most extreme circumstances, he said, permitting the death of a pregnant woman or girl, along with the fetus she carried, would undoubtedly be a greater evil when it was possible to save her life. He asked: if a woman has survived rape and ends a pregnancy that resulted from the rape, is the just and adequate response from society to send her to prison?
People have varied, closely held religious views about when life begins, and whether abortion is compatible with that view. Yet, the state should consider the legal and public health implications of denying women and girls access to what may be life-saving or health-preserving medical services.
Chile offers a good example of how El Salvador could decriminalize abortion to affirm the rights and dignity of women and girls to make deeply personal decisions about their lives, while also fulfilling their constitutional duty to protect the embryo or fetus. There, the Constitutional Tribunal upheld the law legalizing abortion in certain circumstances, meaning that women and girls in Chile may now legally and safely terminate pregnancies when the pregnant woman’s life is at risk; if the pregnancy is the result of rape; or if the fetus will not survive.
Authorities in El Salvador should ask themselves the same questions Etcheberry posed to the justices in Chile: “When a pregnant woman, with the help of a doctor, has an abortion or consents to it, because otherwise she will die, is the appropriate societal response, in the name of the common good, that we should send her to prison?” Women and girls in El Salvador need lawmakers to urgently look to Chile as a way to move toward a more humane response to the issue of abortion.
