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AMERICAN COMPARATIVE LAW REVIEW
Banning Emergency Contraception in Latin America:
Constitutional Courts Granting an Absolute Right to Life to the Zygote
By Maria Alejandra Cardenas*
In the debate regarding conferring a right to life to prenatal stages of life, some States’ Constitutional Courts are going as far as protecting not only the fetus, and not even the embryo, but the zygote, and—as it will be shown through this article—in some instances not even the zygote itself, but the mere possibility of one, to an extreme in which every women’s right is completely nullified if it is somehow conflicting with this special protection. Just in the past four years, the Constitutional Courts of Ecuador, Chile and Peru issued decisions banning or highly restricting access to emergency contraception drugs. Before these series of cases, the battleground over the right to life was restricted to the field of abortion laws, and it would have been odd to think that birth control laws could replace them as it is happening now.
This article intends nothing more than to provide the reader with a vision of how three some Constitutional Courts in Latin America are interpreting their constitutions as conferring an absolute protection to life from the moment of conception. (1) To do so, I will explain and discuss the decisions handed down by the Constitutional Courts of Ecuador, Chile and Peru, by exposing a legal trend that is based on a combination of fabricated reasonable doubts that are construct on outdated scientific information, as well as constitutional interpretations protecting life from the moment of conception, without exceptions or room for balancing such interpretation with women’s human rights. (2)
It is remarkable how similar the Ecuadorian, Chilean and Peruvian Constitutional Court’s decisions are. They all followed the same argumentative pattern, and even the order in which such arguments were weighed. Obviously, there are some details that make the decisions different, but they are minor differences in terms of exposing the trend of extending absolute protections to the zygote. Having said this, I will divide the presentation of these three Court’s decisions into three sections. First of all, I will cover the interpretation that these Courts gave to the scope of protection of the right to life enshrined in each Constitution. Then, I will explain the understanding of these three Courts in regard to the mechanism of action of emergency contraception drugs, and finally I will analyzed the consideration of international human rights law that each Court made, when deciding these cases.
Constitutional Protection of life in the Ecuadorean, Chilean and Peruvian Constitution
Ecuador has overhauled its Constitution twice in the last decade (1998 and 2008). The 1998 Constitution (3) enshrined the right to life within its chapter on civil rights, establishing in its article 23.1 the “inviolability of life” without mentioning the moment in which such life begins. The 2008 Constitution eliminated the chapter on civil rights, and with it, a legal bestowment of a right to life to all human beings. Still, both the old and the new Ecuadorean Constitution established, in the constitutional norms protecting the rights of the child, that the State would recognize and guarantee them “life, including care and protection, from the moment of conception.” (5)
Considering constitutional protection of life from the moment of conception was not taken as absolute, given that while the Ecuadorean penal code criminalizes abortion, it also establishes three exceptions in which it can be legally perform. This is, when the life or the health of a pregnant woman was at danger with the continuation of the pregnancy, or when the pregnancy was the result of a rape on a mentally disabled woman. (6) Therefore, even though the Constitution manifests an interest of the State in the protection of life from the moment of conception, the legislator, weighing such protection with women’s rights, determined that there would be three circumstances in which it would find exceptions. (7)
The balancing made by the State of Ecuador in regard to abortion vis-à-vis women’s rights is not exactly in line with the latest standards developed in international human rights law, (8) regarding the minimum circumstances under which abortion should be legal and available for women, but it is still a balance, and reflects a belief in that the protection of life before birth is not absolute.
However, as it will be explain, in May 2006 the Ecuadorean Constitutional Court(9) would adopt a very extreme position regarding the protection of prenatal life when it analyzed the constitutionality of a set of norms authorizing the use and commercialization of the emergency contraception drug “Postinor 2”, after an Ecuadorian citizen sued the Director of the Ecuadorian National Health Institute – in charge of drugs and sanitation – as well as the Ministry of Health, for having authorized the use of the emergency contraception drug “Postinor 2”, when, according to the plaintiff, this drug works as an abortifacient.
Article 19th of the Chilean Constitution of 1980 stipulates that every person has a “the right to life” and following such statement, it establishes that “the law protects the life of whom is about to be born.” (10) Following such statement, the Constitution establishes the possibility of setting up the death penalty in Chile. In effect, nothing in the language of this drafting says that the right to life is conferred to somebody different from a person, and nothing in the text of this drafting says that life will be protected from the moment of conception, unless a zygote or an embryo are assumed to be a person or at the very least, are assumed to be a fetus that is about to be born. Finally, the fact that the Constitution itself establishes the constitutional possibility of the death penalty makes obvious that it understands that the right to life is not absolute, and therefore, it admits exceptions.
Nonetheless, the legal developments of this constitutional provision regarding the reproductive decision of women to have an abortion, were of conferring one of the strictest protections to prenatal life in the world, not establishing a single exception in which abortion can be legally performed (not even therapeutic abortion), though until very recently such protections did not reach the entity to ban any form of birth control. Regrettably, in 2008, such extreme protection to prenatal life would reach one of its peaks, after the Chilean Court decided to prohibit the free distribution of the emergency contraceptive drug “Plan B” though the public health system. (11)
Article 2º Constitution of Peru(12) enshrines that every person has a right to life, and immediately afterwards, it establishes that the one “who has been conceived is a subject of rights in regard to everything that can be in its favor.” (13) This drafting was not interpreted by the legislator as conferring an absolute right to life to any stage of prenatal life, given that abortion in Peru can be legally performed both to save a pregnant woman’s life, and to preserve her physical health. (14) But again, just some weeks ago, the Peruvian Court decided to ban the free distribution of all forms of drugs advertized as emergency contraception, as well as to force pharmaceuticals producing or selling any form of emergency contraception drug, to label it with a warning stating that the drug could inhibit the implantation of a fertilized egg in the endometrial. (15)
The main legal reason the Constitutional Courts of Ecuador, Chile and Peru decided to impose bans on emergency contraception was that they all interpreted their constitutions as bestowing a right to life from the moment of conception, deciding to adopt a stand according to which conception happens in the moment in which an ovum has been fertilized. The three courts in question recognized that setting the moment of conception when an ovum has been fertilized was a deliberate decision among other theses. (16) The justification for this decision in all three cases was the courts’ assessment stating that the moment in which a spermatozoid has fertilized an ovum there is an entity that contains all the genetic information of a new human being(17) and there is therefore, a person.
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* Maria Alejandra Cardenas is a Legal Fellow for Latin America and the Caribbean at the Center for Reproductive Rights in New York and Irving R. Kaufman Fellow - HLS. She holds an LL.M from Harvard Law School (Human Rights Program - HLS) and a LL.B from Externado University.
(1) The trend I will reveal here entails many legal issues, among which the most important one is its clash with another trend in international human rights law vis-à-vis its rejection to extend the right to life before birth, as well as the primacy of women’s fundamental rights in many circumstances in which they are conflicting with a protection to prenatal life. However, due to space restrictions, I won’t develop this issue in depth here.
(2) Throughout Latin America there are other examples of this trend, both in terms of bans to emergency contraception, as well as of bans to in vitro fertilization (such as in Costa Rica) made on behalf of the absolute protection given to the zygote. Yet, for the purpose of this article, I will exclusively refer to the cases of the three countries mentioned above, given how strikingly similar the facts, the law and the rationale of these three Constitutional Courts were.
(3) Constitución Política de la República de Ecuador. [Constitution]. Ecuador, 1998.
(4) Constitución de la República del Ecuador. [Constitution]. Ecuador, 2008.
(5) See article 45 of the current Ecuadorean Constitution: Art. 45.- “Las niñas, niños y adolescentes gozarán de los derechos comunes del ser humano, además de los específicos de su edad. El Estado reconocerá y garantizará la vida, incluido el cuidado y protección desde la concepción.”
(6) CÓD. PEN. Art. 447.
(7) These exceptions are still very restrictive and certainly reflect a belief in that women’s rights are in general less important than the interest of a State in forcing women to carry out a pregnancy, on behalf of enabling the development of a potential human being.
(8) In the last section of this article, I will briefly comment and provide more information on what the position of international human rights law is in regard to the right to life and abortion.
(9) Resolución [S.] No. 0014-2005-RA, 26 de Mayo de 2006. Tribunal Constitucional del Ecuador. [Constitutional Court].
(10) Artículo 19.- La Constitución asegura a todas las personas:
1º.- El derecho a la vida y a la integridad física y psíquica de la persona.
La ley protege la vida del que está por nacer.
La pena de muerte sólo podrá establecerse por delito contemplado en ley aprobada con quórum calificado.
(11) Sentencia [S.] Rol. 740-07-CDS, 18 de Abril de 2008. Tribunal Constitucional de Chile. [Constitutional Court].
(12) Constitución Política del Perú. [Constitution]. (1993).
http://www.tc.gob.pe/legconperu/constitucion.html (last visited Nov, 1, 2009).
(13) Artículo 2°. “Toda persona tiene derecho:
1. A la vida, a su identidad, a su integridad moral, psíquica y física y a su libre desarrollo y bienestar. El
concebido es sujeto de derecho en todo cuanto le favorece”
(14) CÓD. PEN. Art. 119.
(15) Sentencia [S.] Exp. 02005-2009-PA/TC, 16 de Octubre de 2009. Tribunal Constitucional del Perú. [Constitutional Court].
(16) Ecuador’s Court in section 42nd of the case’s merits recognized that they could not be sure about conception starting at the moment in which the ovum has been fertilized, but nonetheless, they said that facing this doubt they were choosing to adopt this assumption. The Chilean Court went further, recognizing (in section 49th of the case’s merits) that there were other positions, but choosing to adopt the thesis of the moment of fertilization, establishing that it was possible from that moment on, to ascertain the existence of a person entitled with rights (in section 50th, 2nd paragraph of the case’s merits). The Peruvian Court, in its sections 4.2 and 5.1 of the case’s merits recognized that there are different positions when determining the moment in which conception begins.
(17) Supra note 9.
AMERICAN COMPARATIVE LAW REVIEW