The history of women’s reproductive health and rights in the Americas has not been a story of steady progress and gradual improvement. In fact, modern medical technologies and the growing acknowledgement of women’s rights as human rights have not guaranteed increased protection for women’s health or assured women safe choices about pregnancy.
In 2015, a woman from Indiana who claimed to have had a miscarriage was, for the first time in U.S. history, charged with attempted feticide and sentenced to decades in prison. In El Salvador, pregnant women can be prosecuted for medical complications during pregnancy. After a 1998 legislative change that declared abortion illegal under all circumstances in El Salvador, women have been sentenced to jail for up to forty years for having miscarriages.
The prosecutions of individual women across the Americas result from stringent laws that transform pregnant women into suspects—giving legislators the right to convict “perpetrators” who may have unexpected health problems either related or unrelated to their pregnancies. Indeed, laws that treat abortion as crime and use the discourse of a violation of “fetal rights” have provided platforms to criminalize women’s reproductive choices for much of the 20th century and well into the new millennium.
In August 2017, Chilean legislators approved a much-anticipated bill that legalized abortion in limited cases—overturning a 1989 legal ban implemented by the military dictatorship under Augusto Pinochet that declared abortion to be illegal without exception. Between 1989 and this year, hundreds of women were found guilty of obtaining abortions, while others have been forced to comply with the law under traumatic conditions.
Chileans have mobilized for reproductive rights for decades, increasingly so after the end of the Pinochet dictatorship in the 1990s. Still, the country exemplifies characteristics of social-religious conservatism, gender-based discrimination, and patterns of patriarchal privilege that have informed the difficult deliberations over women’s reproductive rights throughout the Americas.
The case of Paola Del Carmen Valenzuela, who was forced to carry an unviable pregnancy to term, recently attracted international attention from reproductive rights organizations. In the course of this and related cases, the Inter-American Commission on Reproductive Rights met in Buenos Aires in May 2017 to hold hearings on Chile’s abortion law reforms. The hearings made clear that such cases remain the subject of both Chilean and regional concern.
The August law permits abortion in three cases: when the woman's life is at risk, when the fetus is unviable, and in case of rape. The vote followed a long, excruciating battle among conservative factions influenced by the Catholic Church and Opus Dei on one end of the spectrum, and a growing number of Chileans who consider abortion a fundamental right on the other end. The debates involved multiple drafts and many proposals of bills—the latest of which, the ley de tres causales (Law of Three Causes), made it to Congress this year. Even after the proposed legislation received congressional approval, opponents sought to prevent the legal changes by referring to a clause that protects the unborn from the version of the Chilean Constitution written under military dictatorship in 1980, with a provision that allegedly rendered the vote unconstitutional. The Constitutional Tribunal, with eight male and two female judges, had the last word on the issue. On August 21 it endorsed the congressional approval and voted to put the law into effect. Conservatives won one concession: Medical practitioners who object on moral grounds may refuse to perform an abortion unless the mother’s life is in imminent danger and no other medical professionals are available.
Criminalization and Documentation
Abortion first became illegal in Chile in 1874, when the penal code called for prison for those who induced an abortion or consented to have the procedure. Women could reduce their prison sentence if they testified to the need to protect their honor as connected to the honor of their families. If a woman had committed the crime of inducing abortion “to hide her dishonor,” and to “diminish” the consequences of the betrayal by a man who had abandoned her, she was defending the proper societal double standard of the gendered traditions of women’s roles within their families and qualified for milder penalty.
In 1931, in response to health concerns, a new law established that a pregnancy could be interrupted for “therapeutic reasons” (physical health concerns). Obtaining the procedure required permission from three doctors. The legal change enabled medical pioneers and epidemiologists who have argued for women’s reproductive rights to conduct research on abortion starting in the 1950s, gaining international support in the 1960s. Physicians like Tegualda Monreal, Rolando Armijo, Mariano Requena and Benjamin Viel observed and documented issues around abortion collected from their experiences delivering community-oriented, patient-focused medical care, working in public hospitals that often treated patients from urban, overcrowded, low-income communities. These doctors found that maternal mortality rates due to backstreet, or illegal, abortions had reached epidemic proportions.
Conducting a new type of fieldwork in urban communities and recording the specific realities of induced abortions, these physicians confirmed that self-induced abortion was a deadly risk for thousands of women as well as an overwhelming burden to the Chilean public health system. In 1961, in 4,000 interviews with women between 20 and 49 years old, one out of every four women admitted to having had between one and 35 induced abortions. The reasons for this ranged from poverty to sexual violence to lack of knowledge about family planning.
Statistics, meanwhile, showed a dramatic increase of recorded induced abortions: in 1940, public hospitals attended to 16,560 documented cases of induced abortions, or 13.9 of 1,000 women of childbearing age. By 1965, this rate had increased by 104.4 percent. Many women resorted to unsafe backstreet abortions by untrained providers under unsanitary conditions. In at least one-third of these cases, the outcome was death.
Nation-wide family planning programs, implemented by the mid-1960s, alleviated the choices many women could make between contraceptive devices such as the Pill and Intrauterine Devices (IUDs)—but did not end the problem of unwanted pregnancies. Neither did reducing the number of doctors required to sanction an abortion from three to two in 1968. Arrests for illegal abortions became less frequent, but remained forceful realities, as not all women were able to access or gain this permission. In the following decades, medical doctors showed a direct correlation between increased access to birth control technologies and decreased maternal mortality.
The Abortion Ban and the Legacies of Dictatorship
Despite this research, in 1989, the military dictatorship, led by Augusto Pinochet, annulled the statutory exception to the general illegality of abortion as one of his last legal acts in office, prohibiting abortion in all circumstances. In 1980, Jaime Guzmán, lawyer and prominent ideologue of the regime, had added a right-to-life clause to the Chilean constitution redrafted under dictatorship, and in 1989, helped push through new legislation. He insisted that “the mother must give birth to her child, even if it will be born abnormal, if she did not plan it, if it was conceived as a result of a rape, and even if giving birth will kill her…” In August of that year, the military replaced Article 119 of the Chilean Health Code with Act No. 18.826, stating that "no action may be executed that has as its goal the inducement of abortion.”
The dictatorship left problematic legacies—evident, for example, in the contradictions produced by two acts: while abolishing therapeutic abortion, the government also oversaw the signing of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which established safe and dignified healthcare as a human right. Legal specialists and transnational feminist activists concurred that the termination of therapeutic abortion in Chile violated of CEDAW principles. While Chilean legislators had paid lip service to accepting global standard bearers of reproductive rights, accountability remained an ongoing challenge.
The Law of Three Causes made clear that there was more at stake than the individual issue of abortion legislation. Posts on popular internet news sites reflected the fears of alarmed Chileans who campaigned against the law, arguing that if women were able to terminate a pregnancy that was the result of a rape, then “any woman will say that she was raped for a free abortion.” Indeed, the biggest split within President Bachelet ruling coalition occurred as a result of objections to the proposed third cause in the legislation—legalizing abortion in cases of rape—and fears that it would lead to false rape claims. Of the three cases of decriminalized abortion, the case of rape received the most opposition (18 in favor, 16 opposed) as senators voted on each individual case.
The deliberations about the rape clause took an even more bizarre turn when Senator Alberto Espina of the conservative party Renovacion Nacional (National Renovation, RN), brought up his concept of “normal rape,” which a woman may experience, repeatedly, in her everyday environment, and that she may want to treat as a private matter. The bill, according to Espina, could force women to report rape against their “normal” inclination to keep it private. He thus attempted to “protect” women over the age of 18, who were not legally required to report common, “normal” incidents of rape. His political colleagues met these statements with relative silence. These comments—as well as the lack of response to them—demonstrate that the culture of patriarchal privilege is alive and well in a democratizing nation that still struggles to grant full citizenship rights to women.
Nonetheless, ending Chile’s abortions ban is an important step that promises relief for women who faced the threat of criminal prosecution and detention. The bill is a partial victory—a step forward after many steps back on the road to women’s full access to health and reproductive choices. The new law assigns significant interpretative power to doctors, not patients, to grant permission to those seeking abortions for the three causes delineated in the legislation. This creates new vulnerabilities and may cause new inequalities among groups of women with access to more or less legal advice to present their case.
It bears remembering that apart from the three cases permitted, all other forms of abortion continue to be criminalized. The concession that medical doctors who object on moral grounds may refuse to perform an abortion unless the mother’s life is in imminent danger still poses a risk. Recent evidence from Chile and other parts of the world reveals that women prosecuted for abortion have in most cases been reported to the authorities by staff or doctors in the same medical institutions where they sought help and support.
Whose Victory – and What Change?
Undoubtedly, the softening of Chile’s abortion ban is an important victory for President Michelle Bachelet, who has worked for the reform through years of initiatives, promises, and political negotiations. But the true protagonists of this story are the hundreds of activists in Chile—and thousands of women in the Americas—whose testimonies spread information about violations of reproductive rights, whose writing presented evidence of women’s needs in the realms of health and reproduction, and whose willingness to brave the streets, individually and collaboratively, effectively challenged discriminatory legislation.
Activists’ resourcefulness and perseverance also helped create a new public discourse and action that represent a cultural change. Years of protesting, drafting proposals, and submitting requests for new laws show how process as well as outcome have shaped a new reality. The issue of women’s reproductive rights is here to stay.
In the words of one Chilean feminist I interviewed, “so many people who never said anything began to join public demonstrations and they were the ones that contributed to a new culture, a new awareness of women’s needs and, at times, an acknowledgement of rights.” At minimum, this climate helps deflate the dangerous notion of pregnant women as “suspects.” In the best-case scenario, it enhances the state’s acknowledgement of women as citizens with full rights—including reproductive.
Jadwiga E. Pieper Mooney is Chair of the Department of Gender and Women’s Studies (GWS) and Associate Professor in the Department of History at the University of Arizona.