`Legal Issues Regarding Therapeutic Abortion`

History of Chile’s abortion laws and practices

Abortion has for the most part been prohibited since November 12, 1874, when the Criminal Code was officially amended to criminalize the practice. Unofficially, however, the government and medical professionals came to a mutual understanding to allow abortion in order to save the life of the woman.ⁱ The abortion ban fell under the “Crimes against the Family Order and Public Morality” section of the Criminal Code in articles 342 to 345.ⁱⁱ Thus the law has always been tinted to a traditionally Catholic social conservatism. The penal code, however, has never specifically defined abortion, but the Supreme Court in 1963 declared than an abortion is a “malicious interruption of pregnancy for the purpose of avoiding the birth of a fetus or of interrupting the natural course of pregnancy.”ⁱⁱⁱ

The 1960s marked a change in policy towards pregnancy and family-related health care in general. During the decade, approximately half of all pregnancies were terminated.^iv Women suffering from complications due to induced abortions accounted for approximately twenty-four percent of all hospital admissions.^v According to multiple surveys conducted at the time, nearly one-fourth of all Chilean women underwent at least one abortion during their lives.^vi Furthermore, the surveys demonstrated that many Chilean women had at least two or three abortions in their lifetimes.^vii The government implemented a series of policies aimed at improving family planning, and as a result, the nation saw decreases in fertility, the number of abortions, and the number of maternal deaths due to complications from induced abortions.^viii On December 11, 1967, the government finally established in the Health Code the long-standing tradition of permitting abortions in order to save the life of the pregnant woman. Section 119 of the Health Code required the abortion-performing doctor to obtain a written confirmation of at least two other doctors that the woman needed to abort her pregnancy for the sake of her own life.^ix

Salvador Allende’s Popular Unity government expanded the role of the national government in health care and family planning, increasing funds going to family planning clinics and hospitals. Increased availability of contraception was a key component of Allende’s policies, and as more Chileans used contraceptive measures, the maternal and infant mortality rates decreased, as did the number of abortions and number of families with at least four or five children.^x The military coup of 1973 sought to restore social order and traditional Catholic family values. During Pinochet’s martial law rule from 1973 to 1975, the government broke up Allende’s family planning programs, citing financial and national security concerns. One of the “enemies within” Pinochet wanted to combat was the low birth rate. Women, according to Pinochet, had an obligation to contribute to the security of the nation by having more children, so they should not use contraception.^xi More children were necessary because Pinochet and renewed earlier border disputes that existed between Chile and the neighboring countries of Argentina, Bolivia, and Peru, and in case war broke out in the years to come, the Chilean army lacked enough manpower to win.^xii

Abortion, too, was a major concern to Pinochet. Like contraception, abortion decreased the potential size of his armed forces and cost the state (in his eyes) too much money. Pinochet demanded that all medical professionals must report the identities of women who sought medical attention due to complications from abortions, and his secret police followed up on these reports.^xiii Moreover, the Constitution of 1980 specifically affirmed the rights of “the unborn.”^xiv Until 1989, however, the Pinochet regime continued to uphold article 119 of the Health Code in cases of ectopic pregnancy.^xv Near the end of his regime, on September 15, 1989, Pinochet’s government amended the Health Code such that “No action may be executed that has as its goal the inducement of abortion.”^xvi Pinochet’s aides declared that “considering the advances in modern medicine, therapeutic abortion is not justified under any circumstances.”^xvii

Chilean law regarding abortion has remained unchanged since and is the most restrictive in Latin America (El Salvador is the only other Latin American country to officially prohibit all abortions).^xviii A study conducted by the Center for Contemporary Reality Studies soon after the 1989 amendment (it was published in July 1991) found that seventy-six percent of Chileans disagreed with the law, believing that the government should allow abortions when the mother’s life is in danger. The study also demonstrated the unpopularity of abortion on demand due to the teachings of the Catholic and Protestant churches.^xix Despite the law and public attitudes, Chile continues to have a high rate of abortions. Approximately one-third of all pregnancies in Chile end in abortions, compared to thirty percent and seventeen percent in the United States and France, respectively, two nations with easy access to legal abortion clinics.^xx Moreover, today approximately forty percent of all maternal deaths are due to complications from illegally performed abortions.^xxi Chilean women undergo approximately 170,000 back-alley abortions each year, and the media has covered the issue a great deal since the 1990s.^xxii If current rates continue, the average Chilean woman in 35 years will have 1.6 abortions before she is 50 years old.^xxiii Nonetheless, the Senate has not debated the liberalization of abortion policy since the law was amended in 1989.^xxiv

Despite the 1989 law, however, lawyers do not unanimously agree that abortion is always prohibited.^xxv Some say that the law allows a woman with an ectopic pregnancy to terminate her pregnancy during the final trimester. Indeed, some desperate women attempt to perform abortions on themselves, causing such grave medical problems that they must go to a hospital. At the hospital, physicians complete the abortion to save the woman’s life and do not worry about the possibility of arrest and prosecution.^xxvi When the government does decide to prosecute, the woman obtaining an abortion faces the possibility of three to five years of imprisonment and anyone providing the abortion faces 541 days to three years imprisonment. The state typically seeks penalties on the higher end of the spectrum for medical professionals.^xxvii Other legal systems in other countries with strict laws against abortion may recognize a defense for the woman of “necessity,” in which the defense must demonstrate that the abortion was the only possible means of saving the woman’s life, but most lawyers agree that Chilean law does not allow for such a defense.^xxviii A woman on trial could argue for a reduced sentence, however, on the grounds of honoris causa abortion. In such a case, the defense must show that the woman obtained an abortion for reasons of honor or reputation.^xxix Unlike the days of strict enforcement of the law under Pinochet, the courts rarely convict women or doctors due to the lack of physical evidence.^xxx

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