Abortion: Considerations for a Debate - Núm. 4, Febrero 2019 - Revista Latin American Legal Studies - Libros y Revistas - VLEX 774582033

Abortion: Considerations for a Debate

AutorElisa Walker Echenique
CargoLawyer, Universidad de Chile. MA in Legal and Political Theory, University College London
Páginas307-326
LATIN AMERICAN LEGAL STUDIES Volume 4 (2019), pp. 307-306
ABORTION: ELEMENTS FOR DEBATE
Elisa WalkEr EchEn iquE*1
Abstract
This paper identies four elements that should be part of an
abortion debate aimed at generating dialogue between the par-
ticipants, rather than creating rigid positions that prevent un-
derstanding the complexity of this issue. These elements are the
importance of the body, pregnancy as a unique phenomenon of
social interaction, value of the nasciturus and consideration of so-
cial factors related to structures of oppression.
Key words: abortion, structures of oppression, nasciturus, pregnancy, body.
I. INTRODUCTION
During the last decades, abortion has been much discussed in political philoso-
phy, law and social sciences in general.
The debate is still open, mainly because countries are still discussing which
one is the proper legal system to regulate this issue. A good example of this is t he
case of Chile, where therapeutic abortion was regulated in the Health Code between
1931 and 1989. Dur ing sai d yea r, which co in cid ed w ith the en d of th e mi li ta ry dic ta-
torship, the latter invalidated the regulation, banning abortion except in those cases
where an interruption was justi ed under the doctrine of double effect.1 It was not
until 2015 and 2017 that the National Congress discussed a bill concerning decrimi-
nalization of voluntary interr uption of pregnancy on three grounds ( life endanger-
ment , non-vi able fet us a nd ra pe), whic h was appr oved in la te 2017.2 Anoth er re levant
example is the case of Ireland, where a referendum was held in 2018, in which t he
option to legali ze the interrupt ion of pregnancy won. Fur thermore, these days, they
are di scus sing a bi ll proposin g a 12-week lim it. This long h istor y of debates on abor-
tion is interesting, since it gives us a more complex picture of this issue, which started
as a discussion on the legal status of the nasciturus, or on women’s control of t heir
bodies, all of which gave rise to new elements for debate.
Considering this historical discussion, and having been part of the team of
*1 Lawyer, Universidad de Chile. MA in Leg al and Political Theory, University College London
(elawalker@gmail.com). I would like to thank Verónica Undurraga, Ignacio Walker Prieto and
Gonzalo García-Campo for the time they put into reading the drafts and for their constructive
comments. Article received on September 24, 2018 and accepted for publication on December 24,
2018. Translated by Fluent Traducciones.
1 Bascuñán (2004).
2 Ley N° 21.030, published on September 23rd, 2017, which decriminalized voluntary interruption
of pregnancy on three grounds.
Elisa Walker Echenique308
LATIN AMERICAN LEGAL STUDIES Volume 4 (2019)
professionals that worked on the bill on decriminalization of voluntary interruption
of pregnancy on three grounds in Chile (hereinafter, the bill on three grounds), I have
identied four elements that I believe should be part of a discussion on abortion,
since they provide a comprehensive insight into one of the most challenging debates
in social sciences. Taking these four elements into account when discussing abortion
helps to end the heinous radicalization that often characterizes this debate, in which
certain counterparts are not only incapable of properly interpreting the arguments
of those having a different opinion, but they usually scorn and radicalize them, pre-
venting productive, respectful and rational dialogue. Thus, I believe that, taken to-
gether, these four elements help overcome several barriers hindering understanding
of an issue which must necessarily be discussed.
First, the analysis focuses on the importance of the human body and protection
thereof, both from the perspective of political philosophy and from a legal approach,
an aspect that is certainly part of the discussion on abortion.
The analysis then focuses on the unique and complex phenomenon of preg-
nancy, where the development and subsequent subsistence of the nasciturus clearly
depends on the permanent connection with a woman. No human social relationship
shares the characteristics of a pregnancy. Thus, ignoring this factor keeps us from
understanding the actual dimension of abortion. Pregnancy and its specic charac-
teristics are key to differentiate the bioethical debate on abortion from others such as
cloning or assisted reproduction techniques.
Thirdly, we analyze the phenomenon of pregnancy and the importance of
the nasciturus. In this sense, regardless of personal religious beliefs on this matter,
this paper supports the idea that the nasciturus is certainly important. Foundations of
political philosophy and rulings of Constitutional Courts on this matter have been
examined for this purpose.
Fourthly, this paper sug gests that social factors potentially affecting a woman’s
decision to abort must be taken into account. In this regard, a specic example of social
phenomena that often directly affect a woman’s decision to abort will be examined.
I believe that linking the aforementioned factors as key elements for the
discussion on abortion is more benecial that just having a comprehensive overview
of this phenomenon. For example, abortion is often discussed by focusing only on the
nasciturus, its ontological reality, its legal status or on the legal concept of “person”. By
analyzing the specic characteristics of pregnancy as a unique social phenomenon,
we include women in the discussion, bringing them out of the shadows and evaluating
their role in this discussion. Women must be the center of this debate. Otherwise, it
makes no sense at all. Thus, understanding the importance of the nasciturus will lead
us to understand that the decision to abort is not just a woman’s decision concerning
her body. It is a complex decision that often involves a crucial life experience that she
will carry for life.
Including the impact of social factors into this discussion is essential, since they
allow us to understand that the debate on abortion cannot be out of step with reality.
It cannot be a mere discussion on the value of human life versus an ideal woman’s

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