A Debt of Democracy
On January 30, 2015, during a televised event, Chilean president Michelle Bachelet unveiled legislation to decriminalize abortion in three specific circumstances—threat to the life of the mother, fatal fetal abnormality and rape. Coming just a few days after the notoriously conservative Catholic country approved same-sex civil unions, Chile seemed to be making sudden strides to undo some of the remnants of 17 years of military dictatorship, but for many it was a long time coming.
The abortion law, a topic of debate since the 1990s, became a major issue in 2010. Tens of thousands of people—mostly students—took to the streets to question the country’s educational model and profit system. The demonstrators shined a spotlight on the inequalities that were left behind in Chile in the now 25 years of democracy following the dictatorship of Gen. Augusto Pinochet. The women’s movement, healthcare professionals and academics have long considered the restoration of legal abortion one of these “debts of democracy.” Along with constitutional overhaul, economic and education reform, abortion has been a focus of the Millennial generation who grew up in democracy and want to erase the legacy of the dictatorship.
Chile’s laws currently criminalize abortion under all circumstances, counting it with the four other countries—El Salvador, Nicaragua, Malta and Vatican City—with the strictest antiabortion laws. The penal code forces women of all ages to carry their pregnancies to term, even if doing so will put their lives and their health at risk, but this wasn’t always the case.
Nearly 60 Years of Therapeutic Abortion
From 1931 to 1989—even in the era of the dictatorship and its 1980 constitution—Chilean law allowed for the lawful termination of a pregnancy for therapeutic reasons, defined in the penal code as “termination of a pregnancy before the fetus becomes viable for the purpose of saving the mother’s life or safeguarding her health.” Two surgeons had to grant their authorization.
During the 1960s, Chile was at the forefront of reproductive health in Latin America. With support from the Chilean government, the medical community developed birth control and spoke out in favor of family planning despite pressure from the Catholic hierarchy and an outspoken political minority. In 1964 the government initiated a highly successful family planning program and the maternal mortality rate elevated by clandestine abortions declined.
Late in the term of President Salvador Allende, the last democratically elected leader, hospitals and medical providers were interpreting the abortion provision quite liberally. Allende, a Marxist and medical doctor with experience providing healthcare to the poor, sympathized with the reproductive rights cause and even quietly supported some proposed expansions to the health code. Despite restrictions, medical professionals performed abortion and postabortion care openly. The South Metropolitan Health Service—and, in particular, Barros Luco Hospital—allowed low-income women to terminate their pregnancies to reduce the risks of maternal morbidity and mortality.
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Inequalities under Chilean Law
Abortion is punishable by three to five years in prison for the woman and slightly shorter sentences for the abortion provider. A 2013 human rights report by Diego Portales University concluded that abortion is a “woman’s crime” that has placed more women than men under correctional control. Until 2004, men never accounted for more than 14 percent of those under correctional control for abortion-related offenses. After that, the percentage of men under correctional control for abortion increased steadily from 38 percent in 2006 to 47 percent in 2012.
The high rate of incarceration for women is based on an even higher rate of punishment of the poor. A four-year study by the Center for Reproductive Rights found that 80 percent of the abortion denunciations had targeted women who visited public hospitals, meaning that those arrested were “disproportionately women of few resources,” whereas no private clinic or hospital initiated a complaint. And only 38 percent of accused women had legal representation at some point, whereas 60 percent had none.
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A Complicated Catholic Legacy
This progressive period for family planning and abortion was short-lived. A 1973 coup brought Pinochet to power. The dictator opposed family planning and promoted motherhood as a woman’s highest calling. At the end of the dictatorship, he repealed the 1931 law and changed Article 119 of Chile’s Health Code to say, “No action aimed at causing an abortion may be taken.”
Pinochet’s dictatorship argued that abortion was no longer necessary because of advances in modern medicine, but it became apparent that the 1931 law was abolished to conciliate the Catholic hierarchy. According to Antonio Bascuñán Rodríguez, a professor of law writing in Chile’s Journal of Law and Humanities, “The true reason for insisting on its repeal [that of the original Article 119] was that it failed to distinguish between directly and indirectly causing the death of a fetus, and thereby authorized both.” This distinction between direct and indirect abortion comes from Catholic moral theology.
Unfortunately, the dictatorship did not pick up on other Catholic teachings that call for respect for women’s well-being and dignity. Chile’s criminalization of abortion has resulted in one of the highest rates of clandestine abortion in Latin America, many of them unsafe. While it is impossible to know exactly, using statistics from arrests, deaths and hospital records experts estimate that between 40,000 and 120,000 clandestine abortions are performed each year. This doesn’t account for the numerous induced abortions that are reported as spontaneous abortion or disguised as another procedure. Women, particularly the poorest and most vulnerable, may access an abortion in unsanitary conditions and without professional care. They are required to passively put their health and life at risk if the pregnancy needs to be terminated for therapeutic reasons. The law dictates that women suffer silently the torment of a pregnancy resulting from rape or one in which the fetus has no chance of survival.
Experts estimate that between 40,000 and 120,000 clandestine abortions are performed each year. This doesn’t account for the numerous induced abortions that are reported as spontaneous abortion or disguised as another procedure.
The Catholic hierarchy may have aligned with the dictatorship on abortion, but this was only part of the public’s perception. For many, the Catholic church had stood with the people as an outspoken critic of the dictatorship and its human rights abuses. This ambivalent legacy may have complicated efforts to reform the abortion law.
Since 1991, policymakers and NGOs have made more than 10 unsuccessful attempts to lift the complete ban on abortion. At the same time, the conservative right also tried to impose harsher sentences for those found guilty of procuring an abortion. During the governments under the post-Pinochet Concertación coalition, largely led by the Christian Democratic Party, politicians were mostly unable and unwilling to discuss the issue, due to feeling an obligation towards the Catholic church for its support during the dictatorship.
While making some democratic changes and repairing the damage of the Pinochet era, politicians and the public were hesitant to openly criticize the Catholic hierarchy and quick to compromise on issues they deemed untouchable. Although Chile has been a secular state since 1925, 70 percent of its population identifies as Roman Catholic, and its public looks to the hierarchy on issues concerning education, morality, family relationships, extramarital sex, birth control and abortion. The hierarchy maintains direct links to the political elite in Chile, which notably was one of the last countries to legalize divorce, in 2005.
Bachelet and the Penguin Revolution
Michelle Bachelet, now in her second term, is the first leader to come out strongly in favor of decriminalization of abortion. In 2006, when she was elected as Chile’s first female president, Bachelet brought hope to the women’s movement. While personally committed to sexual and reproductive rights and health, including access to safe and legal abortion, she faced major challenges coming into office. Her first political crisis became known as the “Penguin Revolution” (because of their black and white school uniforms), when upwards of 800,000 students demonstrated for education reform. Bachelet worked on progress in education while making some advances for sexual and reproductive rights and health—defeating legislation to increase penalties for abortion, as well as championing a measure to allow free access to the morning-after pill in public health centers for women over 14.
The “Penguin Revolution” changed the way Chile viewed young people. It was the most powerful social movement since the fall of the dictatorship.
The “Penguin Revolution” changed the way Chile viewed young people. It was the most powerful social movement since the fall of the dictatorship. This sparked later student movements of 2010 and beyond, which put young people—too young to remember the horrific tactics used to silence the masses in the era of Pinochet’s dictatorship—in the political spotlight in a new way. In this revitalized political context, the organization Miles Chile emerged.
A Reawakening
Miles Chile, whose Spanish acronym stands for Movement for the Legal Interruption of Pregnancy, saw its moment in 2010 with the massive and diverse support for restoration of access to therapeutic abortion in Chile. The civil society coalition brought together individuals who had worked independently for years on the country’s long-standing sexual and reproductive health and rights issues. To address this social debt, the movement needed to open up space for democratic, broad-based, nonexclusionary discussion that would result in better regulatory frameworks for all women.
In late 2010, future presidential candidate Sen. Evelyn Matthei defied her party, Chile’s conservative Independent Democratic Union, and cosponsored a bill to legalize therapeutic abortion with Socialist senator Fulvio Rossi. Miles Chile, in particular, emerged that year as an active player in the debates in the Senate Health Committee, on social media, in the mass media and in forums of academic debate. In September 2011, the Senate Health Committee approved the idea of passing a law on therapeutic abortion. For the first time in 23 years, the full Senate debated three draft laws on therapeutic abortion. In April 2012 the Senate rejected all three.
The following year, there were three separate bills presented in the House and Senate, including a bill submitted as a citizens’ initiative by Miles Chile and endorsed by several parliamentarians and healthcare professionals, which would allow for the termination of pregnancy when the woman’s health is at risk, when the fetus would be not be viable outside the womb and in cases of rape.
During this period, conservative President Sebastian Piñera vowed to veto any legislation that would decriminalize any aspect of the abortion code. In 2013, Piñera was at the center of the uproar over a pregnant 11-year-old known as Belén, whom he applauded for what he called her maturity and bravery in deciding to continue a pregnancy resulting from repeated rape by her mother’s boyfriend. Leaders in Chilean civil society learned a different lesson from Belén, deciding to take advantage of the election year to hold a seminar titled “The Urgent Need for a Law on Therapeutic Abortion in Chile.” As a result, several legislative candidates signed a commitment to support legislation on therapeutic abortion and to take an active role on the issue if they were elected.
In late 2013, the time for governmental silence on abortion was over. Each of the presidential candidates issued statements on abortion. The leading contenders, both women for the first time in history, fell on opposite sides of the debate. Bachelet outlined plans to decriminalize abortion in -specific circumstances. This would be her second term as president, and this time opinion polls indicated she had enough social support to carry the issue forward. Bachelet’s opponent -Matthei, who just three years before had cosponsored an initiative to decriminalize abortion in cases of threat to life and fatal fetal abnormality, rejected legal abortion outright.
Bachelet won overwhelmingly. The newly formed coalition of political parties known as the “New Majority,” (which includes the Socialist Party, Democracy Party, Christian Democratic Party, Communist Party, Movimiento Amplio Social [Broad Social Movement], and Izquierda Ciudadana [Citizen Left]), became the ruling coalition, committed to passing legislation decriminalizing abortion.
In this same election, four key student activist leaders who had led marches in the streets from 2011 to 2013 entered the traditional political structure when they took seats in Congress at age 25. To the Chilean public, the next generation had reawakened the spirit of democracy and mass mobilization that had not been seen since the dictatorship, and a new political era had arrived.
The Threshold of a New Era
On May 21, 2014, during the annual presidential address, President Bachelet announced her plans to introduce a bill on therapeutic abortion. She followed that announcement in January 2015, when the ruling New Majority coalition submitted, through the executive branch, a bill for the voluntary termination of pregnancy in cases of threat to the woman’s life, when the fetus would be unviable outside the womb and rape, up to the 12th week. It includes an extension to the 18th week for women younger than 14, as they often realize much later that they are pregnant.
Recent polls consistently show that nearly 70 percent of Chileans support the proposed law change. Today’s landscape is much more conducive to reform on this issue—as a result of the changes that have taken place in Chilean society since 2006, but more significantly, since the youth-led movements beginning in 2010.
Chile can no longer ignore increasing international pressure to comply with human rights agreements and ultimately, President Bachelet is a forceful advocate for righting Chile’s deficits in sexual and reproductive health and rights. Miles Chile has been another instrumental force working to put abortion law reform on the public agenda so that women in Chile will be protected instead of prosecuted. Chile’s Millennial generation has benefited from a democratic society’s policies and now is rising to positions of leadership in politics, academia and civil society. The country will continue to see a shift from the values instated before and during the dictatorship, towards stronger protections for women and their families to follow their conscience in matters of sexual and reproductive health.
