By José Miguel Vivanco
Last month, the government of President Sebastián Piñera of Chile issued rules that could seriously undermine access to legal abortion in the country.
The rules issued by the Health Ministry, which modify the ones issued under former President Michelle Bachelet, are a setback to recent progress on reproductive rights. In 2017, the Chilean Congress passed a long-awaited reform that ended a 28-year blanket ban on abortion. The law decriminalized abortion under three circumstances: if the life of the pregnant woman or girl is at risk; if the pregnancy is the result of rape; and if the fetus has severe conditions not compatible with life outside the womb. The Constitutional Tribunal upheld the constitutionality of the reform in August, protecting women’s lives and fundamental rights.
It was a landmark change in Chile, but the reform—and the court’s response—left certain barriers to women’s access to abortion intact, even in those three dire circumstances. Notably, while the reform allowed doctors to refuse to perform abortions on the basis of conscience, the court went further, allowing entire private hospitals to invoke conscience and refuse to provide abortions. Earlier this year, a UN human rights body rightly pointed out that that such conscientious objections may unintentionally constitute barriers to access for women and girls. Still, even after the court’s ruling, private hospitals had to articulate reasons to to justify their refusal to provide abortion services.
The new rules eliminate that requirement. Hospitals can now simply inform the Health Ministry that their doctors will not terminate pregnancies. They don’t have to provide any reason.
This opens a Pandora’s box of potential obstacles to women who need these services. A woman carrying a non-viable fetus, or a 12-year-old rape victim, could find herself unable to get an abortion simply because her local hospital does not want to deal with the headaches that might come with offending local politicians, or anti-abortion groups.
The protocol requires hospitals that won’t perform abortions to refer patients to other facilities. It also rightfully says that women should not pay the costs associated to these transfers. But in some parts of the country, it might be very hard to find a health care provider where women could get these services. In rural areas with fewer doctors this could mean that women will encounter significant barriers to legal abortion.
The new rules undermine access to abortions in other ways too. The previous rules required doctors who were conscientious objectors to register as such in a timely manner. That requirement was a way of ensuring that clinics and hospitals would always have a doctor available to terminate a pregnancy. The new rules eliminated this assurance of continuity of coverage.
It is not unreasonable for Chile to allow some scope for health care providers whose religious or moral convictions lead them to decline to perform abortions. Yet the space for such refusals should be closely and appropriately regulated to protect the rights of women and girls. Under international law, religious freedom protections have distinguished between the freedom of religious belief, which is inviolable, and the freedom of religious exercise, which may be limited when it infringes upon the rights of others or the state’s interests. A medical professional’s conscientious objection should not cause anyone to be denied effective access to needed care, including an abortion.
The Chilean government should review and amend the rules to ensure that access to legal abortion is protected. Otherwise it risks letting conscientious objection be used as a pretext to deny important newly recognized rights of women and girls.
Published on HRW on April 16, 2018
About sexual and reproductive health
"Women’s sexual and reproductive health is related to multiple human rights, including the right to life, the right to be free from torture, the right to health, the right to privacy, the right to education, and the prohibition of discrimination. The Committee on Economic, Social and Cultural Rights and the Committee on the Elimination of Discrimination against Women (CEDAW) have both clearly indicated that women’s right to health includes their sexual and reproductive health. This means that States have obligations to respect, protect and fulfill rights related to women’s sexual and reproductive health. The Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health maintains that women are entitled to reproductive health care services, goods and facilities that are: (a) available in adequate numbers; (b) accessible physically and economically; (c) accessible without discrimination; and (d) of good quality [see report A/61/338]."