When Courts Make Decisions Instead of the People: Chilean Constitutional Court Bans Contraceptive Pill

The Chilean Constitutional Court held, in a 5-4 decision, that the emergency contraceptive pill (the so-called “morning after pill”) was contrary to the right to life recognized in the Chilean Constitution. Some insight into the political backdrop of this case will assist in understanding the controversy that the Court faced and decided.

By early 2006, the Chilean Government announced that the pill would be made freely available through the public health system to any woman over 14 years-old who requested it. {{For young women between the ages of 14 and 18 a mandatory session of medical counseling was a precondition to obtaining the pill.}} The rationale for this policy was to ensure equal access to fertility control mechanisms. In fact, by 2006, the pill was already available in local pharmacies to any woman with a prescription. But for many of the woman who rely on the public health system such prescriptions are simply not affordable. The distribution of these pills through the public health system comes under the authority of the military. Eventually, several right-wing majors decided not to distribute the pill arguing it was against their religious beliefs, effectively claiming a conscientious objection to participating in their distribution. (A claim that was rather ironic, given that these same majors have consistently rejected the idea that conscientious objections can excuse conscripts from mandatory military service.) In response to that refusal, the Ministry of Health issued a decree making it mandatory for majors to freely distribute the pill in municipal medical centers. In response to that decree 36 members of congress, all part of the right-wing coalition, filed a writ of unconstitutionality before the Constitutional Court. In a 5-4 decision the Court struck down the Ministry of Health’s decree.

The majority held the pill’s effects on women have not been medically determined. Thus, and according to the pro-homine principle, in presence of a medical doubt about the pill’s effects the Court decided in favor of the right to life— a right that it viewed as beginning at the time of conception. Based on a rather suspect scientific foundation,{{Mainly based on an Amicus Curiae brief filed by the Pontifical Catholic University of Chile Center for Bioethics.}} the Court concluded there was medical agreement (1) on the fact the pill inhibits or delays ovulation, and (2) on the fact it also alters the transport of gametes, thus avoiding conception. Claimants also argued the pill caused a third effect: preventing implantation of a fertilized ovule, thus causing abortion of a “new life.” {{Of course abortion occurs only if one accepts life begins with conception—but that is a hard philosophical, scientific and moral debate.}}

What did the Court say about this third possible effect? It reasoned that—as the claimants argued—should this third effect be proved, this would be “decisive of the decision this Court must take . . . .” It is clear that the Court, when announcing the core of the dispute, had already taken its decision about how to understand the right to life: life begins at conception, {{Otherwise this third effect wouldn’t be unconstitutional.}} so that any medicine affecting a fertilized ovule infringes the constitutional right.

The first part of the decision reviews the findings from those studies concerning the pill’s medical effects—which were all filed before the Court. Having decided that all scientific studies agreed on the first two effects of the pill, the Court concluded there is large disagreement over the third (its alleged postimplantation effect). Indeed, some studies suggested there is no medical evidence about effects on the fertilized ovule (based on scientific tests conducted on monkeys and rats). These studies had been criticized in some unpublished papers because they were based on animal rather than human subjects. Fastening on that critique, the Court concluded that it must ban the pill given that there is no conclusive proof about its effects on the embryo. The Court gave the unpublished papers equal status with scientific studies that had been published in reputable scientific journals. The Court reasoned:

There is equivalence in the arguments in favor and against the statement [about the third alleged effect]: there is equality, both in quality as well as in quantity, between studies asserting or denying the statement. …[Both positions] are equivalent since they support their viewpoint with identical strength and conviction.

It is important to emphasize that the claimants did not actually prove the pill’s effects on fertilized ovule, only that there is a disagreement about it. The Court seemed especially concerned by the fact that the findings in the studies that have been undertaken had involved animal and not human subjects. {{Which raises a concern about the Court’s competency to assess the validity of the scientific methodology employed in these studies.}}

In the second half of its judgment the Court focuses on why the right to life should be protected from conception. According to the Court, Chilean scholars as well as the Court’s own jurisprudence agree on this point. In supporting this claim the Court quoted from traditional Chilean legal scholarship — mostly published by scholars from the Pontifical Catholic University—and cited (only) one previous Supreme Court decision— its prior decision from 2001 banning the licensing of this very pill. It also quoted selective paragraphs from the debates held during the drafting of the Constitution which, it is worth noting, were discussed within a committee appointed by the Military Junta under Pinochet’s regime. According to the Court, it is possible to rebuild the spirit and intent of the Constitution exclusively referring to these debates{{I’m deliberately avoiding using the words ‘founding fathers’ since, as I said, members of the committee who discussed and drafted the Constitution were exclusively appointed by Pinochet—and the Charter later reviewed and amended by Pinochet himself. Usually the Court quotes these debates in order to determine which was the constituent power intent (“la intención del constituyente”).}} — concluding, again, that life should be protected from conception.{{Even though a close analysis of these debates actually shows members of the committee disagreed about the formula to be used in recognizing the right to life, precisely because they did not agree on whether or not abortion should be constitutionally banned. Rodolfo Figueroa, Concepto de Persona, Titularidad del Derecho a la Vida y Aborto, 20 REVISTA DE DERECHO 95, 124- 26 (2007).}} The Court also (conspicuously) misquoted the American Convention on Human Rights. For instance, in supporting its conclusion that life must be protected from conception, the Court stated that article 4.1 of the American Convention on Human Rights guarantees “[e]very person . . . the right to have his life respected. This right shall be protected by law from the moment of conception. No one shall be arbitrarily deprived of his life.” Actually that articles states “[t]his right shall be protected by law and, in general, from the moment of conception” (my emphasis).{{It was the Commission itself who determined how this article should be interpreted—in any case as the claimants and the Court did in this case. See, Baby Boy, Res. 23/81 Case 2141, 6th of March, 1981.}} Finally, the Court concluded by arguing that the right to life has absolute preference over any other right. Curiously the Court did not mention any other right opposing that of the embryo. In fact, as Judge Vodanovic mentioned in his dissenting opinion, the majority of the Court did not weigh the right to life against the sexual and reproductive rights of women.

The Court’s decision in this case shouldn’t take anyone by surprise. Chilean courts have affirmed that, “no one can deny the existence of Jesus;” {{When censuring Scorsese’s Last Temptation of Christ.}} that life is “a natural right only recognized in the Constitution;” and that children have “the right to live and develop in a family regularly structured and socially appreciated.” {{When depriving a lesbian mother of her custody over her daughters.}} That this comes as no surprise does not mean that there is no reason to be outraged. Chilean courts have thought themselves as the guardians of morals, and as the exclusive interpreters of the Constitution. If that exclusivity will mean taking moral debates away from the people, then there are good reasons to protest against the Court’s decisions—as thousands of women have done in the weeks following this judgment — and question its faculties.

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