PONTIFICIA UNIVERSIDAD CATÓLICA DE VALPARAÍSO.

FACULTAD DE DERECHO.

ESCUELA DE DERECHO.

THE CASE OF ABORTION:

A CONSTRAST BETWEEN CHILEAN AND U.S.A. LAW SYSTEM

STUDENTS:
ISABEL ALVARADO OJEDA
FLORENCIA ELSHOLZ
GABRIELA GONZÁLEZ CABRERA

VALPARAÍSO CHILE

2019
INTRODUCTION

Throughout history, abortion has been a frequent subject of controversy because of its ethical,
moral and social implications. It has been banned or limited in diverse societies and, despite
this, they remain common even where social pressure or the law opposes it.

These different visions try to be reflected in the different legislations around the world, which,
in the same way, present differences that are important to emphasize. There are some countries
that prohibit it completely, even penalizing it; going through an intermediate sector, which
approves it in certain specific situations, until we find some systems that do not punish the
practice. Regarding the latter, we can see that specific parameters have been established to be
able to do it, such as the United States.

The work methodology seeks to compare two systems: one, where it is completely legal to do
it, such as the US system, and the other, where regulation only allows it in cases specifically
provided by law, such as the Chilean system, examining the laws and its implications in
practice.

Through this, we seek to understand the implications of the different democratic systems when
legislating a subject.

GENERAL VIEW

Although there are several positions regarding abortion, they can be synthesized in two more
general visions: the “pro life” and the “pro choice”. One of them is more conservative, with
arguments based on religion and morals, which seeks that abortion be penalized again or not
decriminalized, proposing that both lives be preserved. The other points out that abortion
should be legal, considering a position based on the election of women and the implementation
of public policies that ensure the health and well-being of all people.

The Center for Reproduction Rights indicates in their interactive map that 67 countries have
an “on request” legislation, that means that they are free to have an abortion, in this case, the
common gestational limit to get one is 12 weeks. In the other spectrum there are 26 countries
where abortion is fully banned, 39 countries allow to have an abortion in the case that the life
of the mother is in danger, 56 countries that allow it for health reasons and 14 countries that
allow it for broad social or economics reasons. 1

According to the World Health Organization, 56 million abortions are performed every year
on average worldwide, finding the highest rates in the developing regions. 25 million of the
total abortions were performed without the necessary safety measures, which implies that
between 4.7% and 13.2% of the mother's death rate can be attributed to unsafe abortions. 2

Through the figures it can be concluded that the more restrictions there are regarding abortion,
the higher the mortality rate will be, considering that not all clandestine abortions are within
the statistics. This, mainly, because the State does not provide the necessary health conditions
to ensure that the procedure is carried out safely.

Taking all this into consideration, some countries seem to have absolute freedom to perform
an abortion, but, in practice, their laws establish requirements that coerce the actions of people
seeking access to it, making it very difficult to claim this right, such as in the case of the United
States.

UNITED STATES SYSTEM AND THE IMPLICATIONS OF ROE V. WADE CASE

United States of America (USA), as in other countries that were colonies of United Kingdom,
follows the legal tradition of common law. This means that the main source of law is
jurisdictional decisions, that are the sentences that a court of judges or a judge make in sight of
solving a dispute. The decisions that are taken through years are binding for the judges, so they
have to apply the precedents, that are the decisions made before by other judges in similar
cases, on their cases.
Another thing to considerate to fully understand how american system works, is the federalism.
In this form of State organization, the political power is divided between two authorities, the
federal or national and the state power.

Federal government has limited powers and the states make their own laws in several topics,
but they can’t contradict the federal law. This also applies in jurisdictional system where the

1
[https://reproductiverights.org/worldabortionlaws?category[296]=296]
2
[https://www.who.int/es/news-room/fact-sheets/detail/preventing-unsafe-abortion]
state courts are responsible of the topics that it regulate, in the other hand are the federal courts
with specific topics and also they are an appeal instance.

As we said before, this creates precedents that are binding, about federal courts decision, they
are obligatory to considerate in reasoning of state and federal judges. Some of this precedents
are of such important topics that they are called landmark cases.

One of this landmark cases is Roe v. Wade, In this case, Jane Roe sued against Texas statues
that criminalized all case of abortion except those performed to save the life of the mother.
Jane was a young mother that was raped and couldn’t practice an abortion because in the state
that she lived, Texas, was criminalized, and she didn’t have money to travel to other state where
she could do it freely.

The supreme court decided that the statue of Texas was unconstitutional. Because on the the
Bill of Rights, contemplate the privacy of the United States citizens. An reproductive issues,
specially the ones that concerns about pregnancy, are part of woman privacy. Although, it
allowed regulation and proscription of abortion when the state interest are convincing, such as
health of the mother or viable fetus.

This case open the door to every woman to make an abortion without fear of the legal
consequences. Or at least that seems at first sight.

Being that the Federal supreme court only establishes that the right of intimacy implicates that
woman have right to decide about continuing pregnancy, different states that have opposite
positions, set their own requirements backed up in compelling interest, as health of the mother,
leaving this sentence almost null.

An extreme example of these is the state of Alabama where, one of the requirement, is that “a
woman who wants an abortion must receive state-directed counseling that includes information
designed to discourage her from having an abortion, and then wait 48 hours before the
procedure is provided.”
Other obligation very common in a lot of states is that “woman must undergo an ultrasound
before obtaining an abortion; the provider must offer her the option to view the image.”3

In conjunction with other demands, these have led to a lot quantity of abortion centers to close.
That means that some states run out of medical and certified centers, and consequently, to
devoid many womans of a secure, free, and near place to make their abortions.

There are other matters that influence to this center to close such as the conglomerates that pro
life organizations made outside the establishments to avoid that woman decide to abort.
Another issue is the murders of pro abortion specialists, like George Tiller who was one of the
few doctors that made abortions at advanced stage.

Analyzing all these factors, we can say that the possibility to abort without any complication,
is reduced to a few woman; Only the ones that live in determined states or have the economic
means to move to these states.

And despite all of these, there is a worse scenario, and that’s the very likely revocation of the
possibility of abortion. Because, there can be another case that treats this in the Supreme Court,
and establishes that abortion isn’t part of legal right of woman to privacy; And this is
determined only by the political composition of this court, which can be very questionable,
because a right that is considered constitutional is exposed to stop being protected at any time.

OUR LEGAL SYSTEM AND HOW ABORTION IS REGULATED

In contrast with this reality, there is Chilean system, that regulates abortion by law, and this is
applied to any part of the country.

It has been a very discussed topic, generating a lot of controversy in the last few years. because
before the entrada en vigencia of the law 21.030, abortion was completely punishable by law
after political decisions made in a dictatorship regime.

3
https://www.guttmacher.org/fact-sheet/state-facts-about-abortion-alabama
Actually, we have the new law 21.030 in which it has been decriminalized the abortion but
only in three circumstances, although that isn’t enough as from the freedom of women, it is not
a real progress, since this was the actual rights that we have before 1989.

The actual regulation was approved on September 2017, establishing that with the express
consent of the woman it will be authorized that a doctor could interrupt the pregnancy just in
three cases:
1) When the life of the pregnant woman is in danger. The pregnancy is a risk to their life.
2) Fetal infeasibility.
3) In case of rape.
Just in the third case the law set a gestational age limit for the interruption to the pregnancy,
depending if she is over 14 years old or not.

Until today we can determine that between 1 January and 31 March from this year, 175 women
get into the program in whose cases one of the three circumstances has been constituted, where
just 31 women wanted to continue with her pregnancy.

In our legislation, the law that decriminalized the abortion also includes an accompaniment
program. This program is voluntary and personalized and includes psychosocial support in the
discernment process and in the period following decision making, which is between the time
before and after the childbirth or the interruption of the pregnancy, according to the case.

Although in our country, we have another instance that review laws when they have
constitutional topics, the Constitutional Court; This Court controlled the constitutionality of
the project and allowed personal conscientious objection. And last year, the same court
approved a law that allows private health institutions to present conscientious objection. This,
again, is a barrier for women to abort.

OUR FINAL THOUGHTS

In both cases of legislation, we can see that although abortion can be regulated, especially in
the case of USA where is completely legal, this may not be available for all women in the
practice, the ones with least resources being harmed.
This happens in United States because the system doesn’t set general minimum parameters and
the abortion right being as an easily revocable right.

In the case of Chile, abortion are just regulated in 3 circumstances mentioned and the possibility
of conscientious objection, which can give an idea of the possibilities of having an abortion in
Chile and even when it still more permissive that in other states of US. The problem of both of
this systems is that they don’t really solve the reasons that lead to argue pro abortion legislation.

One of the principal reasons, which is hosted by the sentence of Roe v. Wade, is the right of
women to decide about their freedom and the right about her body and intimacy. Regarding
this argument, if not all women have access to even asses the possibility of having a safe
abortion in a place near their home, we can determine that this freedom is practically null.

Another important argument is relate to the WHO indicators that were exposed at the beginning
of this work and is the large number of clandestine abortions that ends lives of many women.
This argument is completely linked to the first one, because without a place where to make safe
abortions, alternative methods are used, which can have adverse consequences but cheaper than
going to a place where they can do it in a safe way.

This also leads to the conclusion that many of the women with more resources, whether or not
there is a legal regulation, they may have an easier access to perform a free, safe and maybe,
in some cases free abortion, because they can pay to travel to another country or another state
that does not penalize this practice.