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STC 3729/2017. Upon Unconstitutionality Actions 3729, 3751; Against Legislative Bill Bulletin No. 9895-11

  • Ángel R. Oquendo (a1)

While many women have profited from the relatively recent rights-revolution in Latin America, their pregnant sisters have apparently had to sit in the back of the bus or stay off altogether. Even modest progress on abortion entitlements has come at a high price and slow pace, perhaps due to the opposition of an alliance of long-established and up-and-coming religious groups. On a positive note, however, the struggle for emancipation on this front seems to be moving forward. In Chile, the Constitutional Court's (or Tribunal's) opinion of August 28, 2017, STC 3729/2017, which generally upholds a legislative bill allowing a woman to abort in the face of risk to life, lethal prenatal pathology, or rape, provides a case in point. Significantly, it also expands the statutory category of conscientious objectors to include non-professional staff and institutions.

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1 See generally Ángel R. Oquendo, Latin American Law 593–656 (3d ed. 2017).

2 See generally id. at 231–60.

3 Tribunal Constitucional [T.C.] [Constitutional Court], August 28, 2017, Rol de la causa: 3729(3751)-17-CPT (Chile).

4 Northern Securities Co. v. United States, 193 U.S. 197, 400 (1904) (Holmes, J., dissenting) (“Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.”).

5 Roe v. Wade, 410 U.S. 113 (1973).

6 Planned Parenthood v. Casey, 505 U.S. 833 (1992).

7 See Oquendo, supra note 1, at 255.

8 See, e.g., Van Orden v. Perry, 545 U.S. 677, 694 (2005) (Thomas, J., concurring) (“Returning to the original meaning would do more than simplify our task. It also would avoid the pitfalls present in the Court's current approach… .”); Roper v. Simmons, 543 U.S. 551, 626 (2005) (Scalia, J., dissenting) (“The Court has, however—I think wrongly—long rejected a purely originalist approach… .”); Scalia, Antonin, Originalism: The Lesser Evil, 57 Cincinnati L. Rev. 849 (1989).

9 See, e.g., Sosa v. Alvarez-Machaín, 542 U.S. 692, 750 (2004) (Scalia, J., concurring in part and concurring in the judgment) (“We Americans have a method for making the laws that are over us… . For over two decades now, unelected federal judges have been usurping this lawmaking power by converting what they regard as norms of international law into American law.”); Lawrence v. Texas, 539 U.S. 558, 598 (2003) (Scalia, J., dissenting) (“The Court's discussion of … foreign views … is … meaningless dicta. Dangerous dicta.”); Foster v. Florida, 537 U.S. 990, 990 n.1 (2002) (Thomas, J., concurring in denial of certiorari) (The “Court's … jurisprudence should not impose foreign moods, fads, or fashions on Americans.”); Thompson v. Okla., 487 U.S. 815, 868 n.4 (1988) (Scalia, J., dissenting) (“[W]here there is not first a settled consensus among our own people, the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution.”).

10 According to the Pew Research Center's Report on Worldwide Abortion Policies, only Chile, the Dominican Republic, El Salvador, the Holy See, Malta, and Nicaragua permitted an abortion under no circumstances in 2015. Pew Research Ctr., Worldwide Abortion Policies: Circumstances Under Which a Woman Can Legally Obtain an Abortion (2015), at See also Press Release, UN Population Division, Dept. of Economic & Social Affairs, UN Population Division Issues Updated Study on Abortion Policies, POP/830 (June 14, 2002) (“The publication shows that abortion is legally permitted to save the life of the woman in 98 per cent of the countries in the world.”).

11 T.C., April 18, 2008, Rol de la causa: 740-07-CDS (Chile).

12 See, e.g., Vásquez v. Hillery, 474 U.S. 254, 265–66 (1986) (“[T]he important doctrine of stare decisis … ensure[s] that the law will not merely change erratically… . Our history[’s] … lesson is that every successful proponent of overruling precedent has borne the heavy burden of persuading the Court that changes in society or in the law dictate that the values served by stare decisis yield in favor of a greater objective.”).

13 In refusing to enter the morality fray, the tribunal might also be distancing itself from its counterparts in the Continental European civil-law realm. See Mary Ann Glendon, Abortion and Divorce in Western Law: American Failures, European Challenges 112 (1987) (“Constitutions, statutes, and court decisions in the continental countries are more deeply engaged in an ongoing moral conversation about abortion, divorce, and dependency than are their Anglo-American counterparts.”).

14 T.C., August 13, 1995, Rol de la causa: 220 (Chile).

15 Herbert Lionel Adolphus Hart, The Concept of Law 199 (1984) (“Those who accept the authority of a legal system look upon it from the internal point of view, and express their sense of its requirements in internal statements couched in the normative language which is common to both law and morals… .”).

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