Constitutional Newspaper Interview Lawyer Carolina Carreño refers to abortion: "In my opinion it is a personal and inalienable right of every woman."

By Francisca Pérez Osses for Diario Constitucional.

In a recent interview with the lawyer Carolina Carreño, we consulted her opinion regarding the project that seeks the decriminalization of the voluntary interruption of pregnancy up to 14 weeks of gestation, thus modifying numeral 3 of article 342, the first paragraph of the article 344 and article 345 of our Penal Code.

Project that last September was approved by the Chamber of Deputies and Deputies of Chile with a number of 75 votes in favor, 68 against and two abstentions.

1. What is your personal opinion regarding this project?

It seems to me that it is a necessary legislation, since it would make it possible to consecrate the right to equality to all women who, by personal decision, decide to abort, which in my opinion is a personal and inalienable right of every woman. In this sense, although Law No. 21,030, which currently regulates the decriminalization of the voluntary interruption of pregnancy on three grounds, was an important advance in the protection of human rights, it has not managed to be an effective response to the reality of many women in the country, as criminal sanctions are still in force for those who decide to terminate a pregnancy.

For the rest, since its publication, there are innumerable cases in which the application of this regulation has not been complied with at an administrative level, either in clinics and hospitals. And this has been the case, on the one hand, due to conscientious objection, which becomes an obstacle and an excuse for specialists not to comply with the law and, on the other, because there is a legal vacuum that does not penalize those health centers that they do not perform an abortion on any of these grounds. This has meant that said law covers only 3% of the thousands of clandestine abortions that are performed in the country. Let us remember that clandestine abortions have always been carried out and will continue to occur as long as this reality is not transparent and the State does not take charge.

2. What practical effects do you think the approval of this law would have?

A direct practical effect of the approval of this law would be to finally reveal a problem that exists in our society for thousands of women who do not have access to abortion, exclusively because they do not have the economic resources. To say that abortions are not done in Chile is to cover the sun with one finger, since what really happens is that they are done, all clandestinely, but economic capacity is the line that divides those that will have consequences for your health or his life with respect to those that do not. We are talking about the fact that it is a public policy, not a moral or religious position and, in this sense, the State has the duty to protect the lives of all women. This would move away from the caricaturing with which an attempt has been made to deal with this issue, for example, that a woman would have hundreds of abortions or there was talk of the "walk to have an abortion", where the woman would have an abortion just because she can or there is nothing more to do (as a propaganda showed in Argentina, once the law was approved, women ran to have abortions, if they could).

3. Do you consider that the approval of this bill would later bring with it the legalization of voluntary abortion?

Any advance in rights legislation is very relevant to me and I have always believed that States should reduce restrictions and increase citizen rights, always hand in hand with the universal delivery of an excellent education. Unfortunately, in our country the exact opposite occurs, since both education and culture go hand in hand with economic capacity. Having said the above, I believe that putting this type of issue in the debate generates an important diffusion of ideas and promotes citizen discussion, which is deeply enriching. To this we must add that access to information has been democratized thanks to the internet.

Then, whether or not a voluntary legalization of abortion is approved in the future is an issue that must be reviewed as a country and the decision must be representative of the citizenry and for that it is essential to gather the will of the majority of society. In this sense, I want to cite a survey carried out this year by the international consultancy Ipsos, which found that 73% of Chileans are in favor of abortion in general, among which 41% think that it should be completely free and a 32% believe it should be allowed in certain circumstances, such as in cases of rape. On the contrary, 7% would be totally against terminating the pregnancy, in any circumstance, and 12% would be against it, except when the mother's life is in danger. In other words, all public policy must necessarily have citizen legitimacy and it is the duty of the State to abide by that will and in relation to abortion, what the surveys show is that society would be open to legislating free abortion.

4. Does the approval of this project mean progress or setback for our country? Because?

Going back to question 1, it seems to me that it is a necessary legislation, since it would make it possible to consecrate the right to equality to all women who, by personal decision, decide to abort, a decision that in my opinion is a personal and inalienable right of Every woman. From the United Nations there have been numerous expressions of support for legislation on free abortion, emphasizing that access to abortion is a matter of human rights. In this sense, this international entity has been categorical in pointing out that ensuring access to these services, in accordance with human rights standards, is part of the obligations of States in order to eliminate discrimination against women and guarantee their right to health, as well as other fundamental human rights.

For its part, the Committee for the Elimination of Discrimination against Women has indicated that "the refusal of a State Party to provide for the provision of certain reproductive health services to women under legal conditions is discriminatory" and that " laws that criminalize certain medical interventions that exclusively affect women and punish women who undergo such interventions,” constitute an obstacle to women's access to health care. Lastly, and most recently, said Committee has asked States to "eliminate punitive measures for women who undergo abortion."

So, in response to your question, the approval of this project would mean a very important advance for me because it would translate into effective compliance by the Chilean State with the duties and obligations to which it has committed itself at the international level.

5. Do you consider that the decriminalization of the interruption of pregnancy up to 14 weeks of gestation would bring about an increase in abortions in Chile?

Existing evidence regarding countries where voluntary termination of pregnancy has been legalized does not show that there has been an increase in the number of long-term abortions. Although it is difficult to have exact data on the number of abortions that occur before legalization (since there are no official statistics because it is an illegal practice), after legalization, statistics have shown that, in the first stage, a initial increase, but in the long term the practice stabilizes or decreases.

For example, a study on the “Incidence of abortion between 1990 and 2014: global, regional and subregional levels and trends”, published in the medical journal The Lancet, concluded that abortion rates had decreased significantly since 1990 in the developed world (where it was legalized), but not in the developing world where the opposite was true. The conclusion of this study was that ensuring access to sexual and reproductive health care could help millions of women avoid unwanted pregnancies and guarantee access to safe abortion.

This topic can be equated with the bill that approved divorce in Chile, which was only approved in 2004 (and which was held up for many years in Congress), very far from most countries in the modern world . At that time, the most conservative sectors close to the Catholic Church disapproved of the legalization of this measure, arguing that it would endanger the family as an institution and would cause a social debacle without proportions. Time has shown that this was not the case, since as indicated during its processing, no one gets married thinking that they are going to get divorced. What was achieved with that law was (again) to make transparent a reality in Chile, where the dissolution of marriage with the so-called “annulment” did exist, a legal loophole based on fraudulent declarations. The problem with that measure was that it left both the weaker spouse and the children completely defenseless, by not establishing the duties and obligations towards the children, such as the parental relationship and the right to support. If a free abortion law is approved, I think the same thing would happen, as long as the law establishes the duty of the recipients of the law to comply with it and apply sanctions in the event that it is not complied with.

Finally, it should not be forgotten that Law No. 20,418 establishes that everyone has the right to receive education, information and guidance on fertility regulation, in a clear, understandable, complete and, where appropriate, confidential. Then, it explicitly indicates that the State Administration bodies with competence in the matter (Assistance Network of the National Health Services System: posts, public hospitals and municipal clinics, etc., both doctors and midwives) must make available to the population contraceptive methods, both non-hormonal methods of contraception such as condoms, diaphragms, etc., as well as hormonal emergency contraceptive methods, better known as the "morning-after pill". This last element must be delivered free of charge in the public health system.

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And in this sense, Decree No. 49 of the Ministry of Health (which regulates Law No. 20,418) currently establishes that, if the method of emergency contraception is requested by a person under 14 years of age, the doctor or official that corresponds, both in the public or private sector, will proceed to the delivery of said medication. Therefore, we see that although there are laws that allow access in certain cases to some methods of termination of pregnancy, what there is is an obstruction on the part of the administration of not complying with it, which clearly means illegality.

6. In the debate on the interruption of pregnancy, the discussion of when life begins, what position do you take in this regard?

I don't think the debate should focus on when life begins, since that question necessarily entails questions of a moral, religious nature and that, ultimately, are related to the internal forum of people. A public policy such as abortion cannot have a moral ideology as its central foundation, and there I return to what I pointed out about divorce.

The State has the duty to legislate for all citizens and not only with respect to a group that agrees with its ideas or principles. The important thing is that the possibility of choosing is given, that it is fully regulated and that all health guarantees are delivered so that the woman's life is not put at risk. No woman, and this is stated by numerous national and foreign studies, wants to have an abortion or likes to have one, since it is a very delicate situation where many aspects are combined and for which she is aware of the effects and consequences that it implies; then having an abortion, far from being an easy decision to make, means making the decision in the face of the possibility of maternity being a conscious and responsible decision.

For this reason, it is necessary to put an end to the prevailing paternalism in relation to this issue that believes that women do not have the right to decide for themselves on this issue, but that there must be someone else to decide for them. But that also means putting aside the double social standard that punishes women and holds them fully responsible for the facts (arguing that she should have taken care of herself before or that she did not think so, etc.). This double standard, which advocates for the life of the unborn and then leaves the woman who gave birth to the child without the necessary conditions to her fate (the State does not have institutions that effectively help that mother and that child) also forgets the responsibility of the father, who normally in these circumstances disregards his parental duties and leaves the minor completely defenseless.

Unfortunately, this situation does not occur as an exception, but rather, in the vast majority of cases, where 9 out of 10 men do not comply with their parental duties when a couple separates. Sadly, this behavior is reinforced by the macho image that exists in our country that romanticizes the figure of the self-sacrificing woman who does everything for her children, at the expense of her personal projects and professional growth.

7. Should the decriminalization of the termination of pregnancy before 14 weeks be considered a fundamental human right?

I do not agree with hyper-constitutionalization, that is, writing in the Constitution all the rights that we believe the State should take care of. This is a phenomenon that has been going on for decades and for which we have very concrete examples in our region, such as the constitutions of Ecuador or Colombia. In both examples, the constituents drew up a very complete and extensive list of fundamental rights, but (and therein lay the mistake) they forgot what Christian Viera calls "the machine room of the Constitution", that is, the delivery of real power to the organs of the State to make these rights effective so that they have a real judicial protection and not only become good intentions.

I do believe that it should be a human right, understanding that as a universal right, but I do not think it is necessary to give it a constitutional category, because under that logic then we would fall into the same error as the aforementioned constitutions. In my opinion, the current Constitution should enshrine what is called a Welfare State, where a relevant role of the State is reestablished in the effective protection of those essential rights for society, such as health, education and pensions through a effective regulation and where it coexists in balance with the capitalist economic model. In other words, that everyone has the same possibilities of accessing quality systems in the mentioned areas and that the lack of resources is not a barrier to it.

8. What do you think is the rationale behind the search for this amendment to the penal code, in order to decriminalize the voluntary interruption of pregnancy up to 14 weeks?

As indicated in the Bill, this reform to the Penal Code would ensure full respect for the human rights of women in the country. This is because, although by constitutional mandate, for the Chilean legal system -as well as for international human rights law that is part of it- women are subjects of rights, holders of faculties, prerogatives or attributes that derive from dignity In the field of sexuality, women have historically been the object, in practice, of all kinds of controls and guardianships that deny their status as holders of rights.

In particular, on the occasion of pregnancy these guardianships are exacerbated and that entitlement becomes relative or is rightly denied. The result is that the right to personal autonomy is denied to Chilean women through punitive laws that, based on certain moral or religious beliefs, impose on them the obligation to procreate and fulfill the social mandate of motherhood. The foregoing goes, without a doubt, against a society that aspires to be democratic, because it puts moral and religious beliefs before freedom of conscience, which is not legitimate, but contrary to the fundamental bases of a Democratic State of Law and Secular, like the Chilean State since 1925.

Then, and given that criminalization has not prevented or discouraged women from having an abortion, we can consider that its criminalization has been an inefficient and insufficient measure and whose only concrete effect has been the clandestinity of the measure and the insecurity of women who choose to abort, along with the stigma placed on them. So, putting an end to the decriminalization of abortion, I think, effectively seeks to recognize (finally) the condition of women as subjects of law, as full citizens and as sovereigns of their bodies. Stop criminalizing their moral capacity and their autonomy to make decisions regarding their lives and put an end to a paternalistic public policy regarding the actions of women in the life of the right to which they have historically been subjected in our republican life.

9. What do you think are the rights that will be protected or violated in your case, with the approval of this project?

Let us remember that, in international matters, and as expressed by the United Nations, States have the obligation to respect, protect and fulfill the rights of women in relation to abortion services. Then, in relation to respect, States must eliminate any legal provision that punishes women who have undergone an abortion or the doctors who offer these services. Regarding protection, States must organize their effective health system to guarantee that the exercise of conscientious objection by health professionals does not prevent women from accessing health services. For example, in places where abortion is legal, if a doctor refuses to perform it, the health system must refer the woman to an alternative health care service. Finally, to fulfill this right, States must take measures to ensure women's access to adequate health care services and remove those obstacles to the provision of abortion services that force women to resort to abortion services. unsafe abortions, including the elimination of unacceptable delays in the provision of medical care. So, if decriminalization is approved, more than protecting women's rights, what will happen is that the rule of law would be restored and Chile would begin to effectively fulfill its duties as a State Party to international organizations and agreements.

In this sense, it is not enough for a State to ratify a treaty or form part of an international organization if it does not have the effective political will to comply with the mandates that these impose on it. Let us remember that although our country ratified the Economic and Social Rights Pact, it has not yet ratified the Additional Protocol to the American Convention on Human Rights (“San Salvador Protocol”), which invigorates the validity of DESC in the continent, perfecting the obligations for the States parties to the Convention, so that the standards in this matter focus exclusively on the International Covenant and on the interpretation of it by the Committee on Economic, Social and Cultural Rights of the United Nations (usually, through General Observations). And even more serious is the fact that Chile has not ratified the optional protocols of the Convention on the elimination of all forms of discrimination against women (of 1999), nor of the International Covenant on Economic, Social and Cultural Rights (ESCR) of 2008. These instruments, called “protocols”, are norms that generate mechanisms for the implementation of the human rights standards of their respective treaties, for the citizen enforceability of those who are victims of human rights violations in their area.