Constitutions and Gender Equality in Chile and Argentina

Enables Gender Policy Reforms

Scholars contend that constitutional provisions can be part of an enabling framework that facilitates legal change (Waylen, 2007: 201). Women’s movements can use egalitarian constitutional provisions as a tool to fight gender discrimination and pursue policy changes that address gender-based power disparities. Where egalitarian constitutional provisions are weak or absent, rights advocates may have a limited capacity to pursue gender policy reform and/or rely more heavily on international laws and treaties. ³ Similarly, where provisions tie women’s citizenship to traditional gender roles or ignore gender difference, women’s organisations may find they are constrained by the constitutional discourse of gender neutrality or maternalism.

In Argentina, constitutional gender equality provisions provide a foundation for women’s rights claims; thus, we expect policy-makers and women’s rights advocates to identify egalitarian constitutional provisions as a central tool to pursue policy change in Argentina. We also expect to see more gender policy, comparatively. Likewise, we expect legislative discourse around policy change to draw on egalitarian language in the constitution. In the Chilean case, we would expect the absence of egalitarian provisions to be constraining for advocates seeking policy change. Because Chile amended its constitution to include a sex equality statement in 1999, we can also examine the extent to which advocates see this constitutional change as helpful for achieving policy change.

Provides Legal Tools and Arguments

Constitutional language affects judicial interpretation of laws and the protection and advancement of constitutional rights by courts. Constitutional provisions can “create or limit opportunities for NGOS (Non-Governmental Organizations),” provide rights activists with “tools to challenge the state,” and shape “the kinds of legal claims that can be made as well as the persuasiveness of those claims” (Baines and Rubio-Marin, 2005: 9; Vanhala, 2018: 384). As Baldez et al. (2006) demonstrate, equal rights provisions increase the standard of the law that is applied and increase the likelihood of a favourable judicial decision. If gender provisions in the national constitution improve the opportunity to advance litigation on women’s rights or the chances of “women-friendly” decisions, we would expect to see more judicial decisions favouring women’s rights in Argentina.

Enhances the Legitimacy of Rights Claims

Clearly articulated constitutional rights and duties can enhance the legitimacy of rights claims (O’Sullivan and Murray, 2005). Constitutional provisions are a source of legitimacy because they are “reflections of shared values” (Ginsberg and Huq, 2014: 121). Thus, the presence of a stated constitutional commitment to gender equality should increase the legitimacy of gender rights and ground arguments for gender policy change.

We would expect a discourse of constitutionally recognised gender rights to be reflected in the language introducing, framing, and debating gender policy. Women’s rights-based arguments and proposals should be more common in Argentina where constitutional values about gender equality are explicit and thus provide more constitutional legitimacy than in Chile. We expect to see greater reliance on international law arguments in Chile, as its Constitution does not provide a strong legal platform for gender equality. ⁴

Argentina

The Argentine Constitution dates to 1853. Significant constitutional reform was enacted in 1994 and included a number of changes with respect to gender. The changes incorporated three key provisions promoting gender equality: a constitutional electoral quota (Article 37), equal pay for equal work (Article 14 bis), and affirmative action where Congress has the power to “legislate and promote positive measures guaranteeing true equality of opportunity and treatment” (Article 75, No. 23). According to one lawyer, these provisions “were adopted with a clear political intention to overcome obstacles in the road to equality…Affirmative action is a very important point in this regard…It has had a transformative effect” (AL1329). In addition, and perhaps most importantly, Argentina’s 1994 Constitution explicitly names and incorporates core provisions of the UN Convention on the Elimination of All Forms of Discrimination against Women or CEDAW (Article 75, No. 22). This was a “crucial advance” because it provides the legal tools for getting women’s issues on the agenda and opens the “way for women and women’s organisations to use the courts to gain the enforcement of women’s rights nationally” (Kohen, 2009: 95; AMW4405). One legal scholar and activist noted that the inclusion of CEDAW in the Constitution had resulted in a major cultural shift in legislative discourse and in legislation: “Legislative discourse, in Congress… has been transformed. Numerous [laws] capture the development and evolution of international human rights law…in the justification of laws, in parliamentary debates, and in the justifications for administrative decisions” (ALS13414).

At the same time, many viewed the implementation of law as problematic. Difficulties stem from many factors including low administrative capacity, lack of funding, lack of accountability, failure to ensure access to state services, and gender stereotyping within state agencies (particularly the judiciary). Women’s organisations reported that they divide their efforts between holding the state accountable for implementing policy that has already been passed and advocating for new policy. In both cases, constitutional provisions aided their efforts.

Chile

Chile transitioned to democracy with the 1980 “Constitution in Liberty,” a document written by the military regime and “inspired by right-wing philosopher Friedrich Hayek” (Waylen, 2007: 158). Given its roots in the military dictatorship (1973–1989), those on the political left have long contested the legitimacy of the constitution itself; more on this below. Article 1 of the Constitution contains a neutral statement of equality (“all persons are born free and equal”) ⁶ ; it also singles out the family as the fundamental unit of society and obligates the state to take steps to protect and strengthen the family. In 1999, the Constitution was amended to explicitly include a statement that men and women are equal before the law (Article 19, No. 2). The Chilean Constitution, however, does not promote gender equality or address gender discrimination, nor does it actively promote or protect motherhood.

When we asked how constitutional provisions and values shape policy, many interviewees said the Constitution was more of an obstacle than a tool to achieving progress on gender policy. While a few subjects felt the equality statement could be leveraged to revise laws that were explicitly discriminatory, most felt it was symbolic. Many suggested that the political right had been more active and adept at using the Constitution to block gender policy change and that the family provision was the more commonly used constitutional provision (CG1041, CL2072, CL4309, CG12318). Gender policy proposals face a stiff bargaining environment in Chile – the result of coalition politics. According to interviewees in both governmental and non-governmental positions, this often means that a discourse of women’s rights and gender equality is strategically dropped for the more palatable and legislatively successful discourse of family and motherhood. As one legislator put it, “A discourse based on family, women as mothers, in the end has much more weight and support than a discourse of women’s rights” (CM14320).

Those involved in human rights litigation echoed the view that the Constitution was “not particularly helpful” for pursuing gender policy reform. Litigators explained that “very few women are using the courts to press inequality claims,” though this is due in part to a legal culture that prefers arguments and judgements based on statute, rather than the Constitution (CS5309, CG7310, CS3308). Similarly, a UN working group observed that “the courts do not provide a realistic recourse for women on issues of equality” nor are they “known for demonstrating gender sensitivity.” ⁷ In short, “Women haven’t used the…judicial tools to protect the principle of equality or to protect or amplify their rights” (CM9315). In recent years, scholars have seen a gender perspective in judicial reasoning beginning to develop ⁸ and some “incipient activism in rights adjudication in Chile” as a result of judicial training and institutional changes, but thus far there is no clear trend towards a “rights revolution” (Couso and Hilbink, 2011: 100–112).

Recognising the limitations of the current Constitution, activists have devoted considerable energy to reforming it. As part of his “Women’s Agenda,” President Sebastian Piñera proposed to revise Article 1 of the Constitution to include the following statement: “It is also the duty of the State to promote equality of rights and dignity between women and men, avoiding all forms of violence, abuse or arbitrary discrimination.” ⁹ Those supporting the reform noted the importance of constitutional recognition and state promotion of gender equality, and the impact it would have on future legislation and jurisprudence. For example, Congresswoman Carmen Hertz stated that approval of the reform will “give a legal imperative to the state’s power, its ‘duty’ to ‘respect’ and ‘promote’ equality [between men and women] that goes beyond equality before the law.” Similarly, Congresswoman Loreto Carvajal argued that constitutional reform would create a new baseline and “condition all aspects of our legislative work in areas such as education, health, social, economic, wage, work and, of course, protection.” Congressman Osvaldo Urrutia added that the reform “opens the possibility of standardised jurisprudence to establish or ratify that men and women are equal before the law.” ¹⁰ These comments mirror our main theoretical expectations: that constitutional provisions matter for the legitimacy of rights claims, as an enabling framework for legislation, and as a legal anchor for judicial decisions.

Major constitutional changes are on the horizon. In October 2020, Chileans went to the polls and overwhelmingly voted in favour of a new constitution that will be drawn up by a commission elected by the people. Although this vote was driven by frustration and protests against economic inequality, the new Constitution is likely to include many gender provisions as the commission must have equal numbers of men and women.

Gender-Based Violence

Gender-based violence is arguably the most serious threat confronting women in any country; Chile and Argentina are no exception. Neither the Chilean Constitution nor the Argentine Constitution include specific provisions about gender-based violence. However, both ratified the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (commonly known as the Convention Belém do Pará) in 1996, and both are obligated to introduce measures to eliminate or limit violence against women and to monitor it. In Argentina, Belém do Pará and CEDAW have constitutional status. Argentina’s Violence Against Women (VAW) law explicitly draws upon constitutional rights, the principle of gender equality, and international law. In Chile, the framing of legislative debates and the law itself is oriented towards the family and women’s role within the family.

In Argentina, the 1994 Protection from Family Violence Law “constituted a major victory for the feminist movement, which had campaigned for this legal tool for years” (Kohen, 2009: 87). Nonetheless, it suffered from numerous weaknesses including lack of enforcement, not being considered part of criminal law, and failure to take a comprehensive view of the causes of violence against women. The Law for the Comprehensive Protection of Women (No. 26.485), passed in 2009, represented a major legal advance. In particular, the law draws on the constitutional right to equality between men and women and incorporates the language and standards set by international agreements referenced in Article 75 of the Constitution. The language of rights and gender equality permeates both the text of the 2009 statute and the legislative floor debates. For example, Representative Juliana Tullio declared, “finally we will have a standard to protect women’s rights, sanction violence, and promote the right of women to live free from violence,” and Representative Silvia Storni emphasised that “advancing and attaining equality between women and men is a question of human rights.” ¹² However, implementation has been hampered by Argentina’s federal system and a weak CNM, which is in charge of oversight (Franceschet, 2010; Smulovitz, 2010).

Two other important laws have increased punishments for violent crimes against women. In 2012, Argentina revised the penal code to include femicide and made homicide for gender-related reasons an offence punishable by prison for life. ¹³ Large public protests against femicide and violence against women took place in 2015 and 2016 under the slogan #NiUnaMenos (“NotOneLess”) and helped raise awareness and push for legal reforms. The Rights and Guarantees of Crime Victims (No. 27.372/2017) goes further: it recognises and guarantees the rights of victims and empowers authorities to prevent, investigate, and punish crimes including crimes against sexual integrity and gender violence. Constitutional recognition of international law is central: the law’s first objective is to “guarantee the rights of victims of crimes and violations of human rights…as enshrined in the Argentine Constitution and international treaties of human rights that Argentina has ratified…” (Article 3a).

When individuals and advocates have turned to the courts in Argentina, they have run up against entrenched conservatism and gender bias. Judges may fail to investigate, dismiss cases of violence against women as a “private matter,” require the victim to provide additional proof, and “re-victimize” the victim by focusing the investigation on a woman’s body or character (Asensio, 2010). A prominent example is L.N.P. v. Argentina (2007). L.N.P., a 15-year-old indigenous girl, was raped in a northern province by three men. Her injuries were extensive and verified, yet the judge doubted her lack of consent, suggesting that she did not resist seriously enough, that rape can be confused with violence common to the sexual act, and that the injuries were due to the nature of the act (anal penetration) and the youth of the subject. The UN Human Rights Committee found the state in violation of the International Covenant of Civil and Political Rights. The case was followed in the national and local media and demonstrates the contradictions between legislation that incorporates international definitions and standards of women’s human rights, and a conservative judiciary (ELA Equipo Latinoamericano de Justicia y Género, 2009: 514).

Few gender-based violence cases make it to Argentina’s Supreme Court. Most are heard in family courts or civil courts and then may be appealed to an appellate court. The decisions at these levels are mixed. As seen in L.N.P., some are highly discriminatory. However, a shift has been occurring. Increasingly, the judiciary is actively drawing on constitutional rights and international law, changing its sentencing, “gradually modifying its practices to adapt to the requirements of international regulatory frameworks,” and finding in favour of the victim (ELA, 2011: 77). ¹⁴ Interviewees confirmed this trend and said that the responsibility of judges to investigate was being taken seriously at the appeals court level (AL1329). Higher courts in particular reflect these changes and a number draw on constitutional and international law to justify their judgements in gender-based violence cases. ¹⁵

Chile also passed anti-violence legislation in the mid-1990s and subsequently reformed the law in the 2000s. Although the original bill focused on gender and constitutional rights to life and equality before the law, the Family Violence Law (1994) faced a conservative political environment (over-representation of the right and a central role played by the Christian Democrats in the ruling collation), was more moderate than activists wanted, and hamstrung by an inadequate budget, deficient judicial procedures and weak penalties for perpetrators (Franceschet, 2008).

A review of the floor debates over modifications to the 2005 Family Violence Law demonstrate the rhetorical power of the constitutional provision regarding family, which is cited more frequently than arguments based on women’s rights. Representative María Angélica Cristi’s remarks, for example, clearly echo the constitutional provision on family: “We must recognise that the family is the fundamental unit in which humans socialise. A weak or unprotected family is at risk for violence.” ¹⁶ Other legislators, including members of the progressive Socialist Party, couched their support in similar terms. The improvements to the 2005 law include increased penalties, the addition of physical and psychological violence to the criminal code, overhaul of family tribunals, increased budget for shelters and data collection, and creation and maintenance of national data registries to track the incidence and handling of domestic violence cases. Following enactment, arrests more than doubled (Franceschet, 2008). Despite these improvements, interviewees working in this area remained critical. They noted that the Chilean law continues to be limited to family violence and centred on a discourse of domestic violence, rather than the broader human rights discourse of gender-based violence that informs the Convention of Belém do Pará (CW11318, CG1041).

The judiciary, and the criminal justice system in general, has not taken VAW seriously. ¹⁷ Stereotyping continues to be an issue in the judiciary, particularly at lower court levels. An example of this was demonstrated in a 2016 “crime of passion” defence for attempted femicide. ¹⁸ When police officers responded, the woman’s partner was brutally beating and stabbing her in their home and did not desist from the attack until one of the officers shot him. The partner was convicted of attempted femicide, but the trial court reduced the sentence to probation because the partner acted in a “fit of rage” over the victim’s alleged infidelity. ¹⁹

As noted above, there are few cases that make it to the high courts, and litigation based on equality claims has rarely been a winning strategy. Activists that do litigate VAW cases rely heavily on international law, particularly CEDAW and Belém do Pará, to ground their legal arguments and seek policy change in areas where the state was not meeting its international obligations (CW6309). ²⁰ “International law is used frequently by the women’s movement and women in government. And it has been [used] effectively, in the Violence Against Women law for example,…It is the tool we use most often in discourse, in political argumentation, in projects” (CG7310). But others contended that the equality clause has also been important and that it has been utilised “by the courts in their decisions and to support subsequent reforms…Moreover, the criminal courts, in cases of violence against women, have applied this article” (CM 9315).

Workplace Equality

Recognising and promoting gender equality and equal opportunities in the workplace, including equal pay legislation, has been on the reform agenda for women’s organisations in both countries during the three decades in our study. Unlike Chile, Argentina’s Constitution includes several provisions that concern workplace equality: the equal pay for equal work provision (Artice 14 bis), Congress’ power to legislate positive measures to ensure equal opportunity (Article 75, No. 23), and international treaties (Article 75, No. 22). ²¹ Rights advocates pursuing workplace equality have drawn on the constitution and international commitments, but with different degrees of success and different discourses.

Under the National Plan for Equal Opportunity in the Workplace (1998), women are entitled to equal opportunity and equal treatment, equal pay for equal value, and protection from discrimination and sexual harassment in the workplace. The National Plan draws heavily on the discourse of gender equality in the Constitution and repeatedly refers to the constitutional status of CEDAW. Subsequent employment laws also draw upon constitutional rights, CEDAW, and ILO (International Labour Organization) conventions in the text of the law and in legislative debates. For example, the preamble of the Trade Union Quota Act explains that the Constitution provides for legislation to promote equal opportunity and that the law “aims to give effect to this guarantee, so that women workers are represented in the discussion of their work conditions.” Similarly, in legislative debates, senators referred to constitutional rights, equality of opportunity, and rights enshrined in ILO treaties that Argentina ratified. ²²

One of the most significant pieces of legislation affecting women’s employment is the Domestic Worker Law (Law 26, 844, 2013). This law granted numerous rights and protections to domestic workers that were enjoyed by regular workers under the Labour Contract Law including maternity leave, paid holidays, yearly bonuses, compensation for dismissal, social security contributions, and limits on working hours. A unique feature of this law, and one that is important for ensuring representation of domestic workers, is that it establishes the National Commission of Household Staff – a tripartite commission with union and government representatives charged with regulating minimum wages and working conditions for domestic workers (Gorban and Tizziani, 2018). The law closely follows the principles and recommendations laid out in the ILO’s Decent Work for Domestic Workers Convention No. 189 and Recommendation No. 201 that Argentina ratified in the same year. The incorporation of international treaties into the Constitution, along with mobilisation by international and domestic workers’ unions, were important factors that helped get this law on the agenda (Poblete, 2018; AG9411).

In legislative debates, representatives and senators framed their arguments in terms of equality among workers, arguing that the disconnect between domestic workers’ rights and those of other workers went against constitutional norms and/or referred to their obligations to meet the standards of the ILO Convention. For example, Representative Juan Mario Pais argued,

Court decisions on employment policy reflect, to some extent, the egalitarian Constitution. Asociación Mujeres en Igualdad v. Freddo S.A (16 December 2002) is a landmark sex discrimination case involving discriminatory hiring practices. The judge cited the constitutional right to “real equality of opportunities” (Article 75) and international commitments in his decision and imposed fines and affirmative action measures on Freddo to correct the discrimination. This was the first case in which the Argentine judicial branch imposed this remedy. In Mirtha Graciela and others v. Taldelva SRL and others / amparo (20 May 2014), a woman in Salta Province, who met all the requirements to be hired as a bus driver, claimed she was not given a job because she was a woman. ²⁴ Her suit made important rights-based arguments about gender equality, discrimination on the basis of gender, and the violation of women’s rights. The Court of Salta (province) imposed a quota (30 per cent) for female driver positions, a decision that was vacated by the Court of Appeals. However, the Supreme Court sided with the provincial high court, basing its decision on constitutional rights to equality and non-discrimination and international commitments. These two decisions are particularly important because they impose affirmative action remedies on private sector businesses. That is, instead of obligating the state to act, the court obligated private actors to take proactive measures.

Changes in Chilean labour law reflect a tension between the constitutional commitments to family and to equality before the law. As Casas and Herrera (2012) note, protection of motherhood is desirable and accepted, while claiming maternity rights is not. Some important legislation advancing women’s rights in the workplace has been passed – for example, the Sexual Harassment Law and the Equal Pay Law. At the same time, even policy changes that are potentially supportive of gender equality in the workplace are often framed in terms of women’s traditional caregiving role and constitutional protection of the family. ²⁵

The passage of the Act on Sexual Harassment in the Workplace is a good example. In justifying the amendments to the labour code to make sexual harassment illegal and set up a complaint mechanism, SERNAM and the main sponsor, Representative Adriana Muñoz, made direct reference to women’s rights: “If the bill is passed in Congress, it will… send a powerful signal that…women can enter the employment world confident in the knowledge that their rights will be respected.” ²⁶ However, the final version of the bill contains no mention of women’s rights or constitutional rights. It is interesting to note that, in her final defence of the law, Adriana Muñoz herself does not refer to rights or even dignity, but returns to the theme of family: “Considering the proportion of female headed households with dependent children, the fact that their jobs are constantly in question because of abuse of power makes their situation all the more dramatic.” ²⁷

The Equal Pay Law (2009) is clearly oriented to advancing equality and based on gender equality arguments. This represented a departure from the previous emphasis on women’s role in the family by explicitly tying the legislation to gender equality and non-discrimination provisions in the Constitution as well as international law and practice. ²⁸ One legislator went so far as to say that the constitutional equality provision was key to getting this law (CM14320). On the occasion of its passage, President Bachelet declared that Chile was now “fulfilling an ethical obligation to demonstrate that men and women are equal before the law” (Silva Irarrázaval and Arab Massuh, 2014: 254). ²⁹ Proponents, however, hastened to add that women’s rights were not the only issue at stake, but also family stability since women contribute significantly to family income: “Wage discrimination, not only undermines the rights of women…. [it] is contrary to the interests, and even the stability of the family.” ³⁰

Finally, Chile also passed reforms to improve the status of domestic workers. These changes came about as a result of mobilisation by domestic workers associations and the ILO’s Convention No. 189. Ratification of C189 and the domestic worker bill were debated together and approved on the same day in October 2014. In legislative debates, representatives in favour of the bill made reference to equal rights, non-discrimination, and C189 (Blofield, 2012; Poblete, 2018).

In Chile, there are very few constitutional claims to women’s equality made in the courts. As one interviewee put it, “there really isn’t a culture of claiming rights for discrimination. And there are not very good mechanisms for doing so either” (CG7310). Moreover, when women do litigate, they use the statute, not the Constitution, as the starting point. As a result, many labour- and employment-related cases in Chile concern dismissal without just cause, and the majority of gender cases deal with pregnancy discrimination. Generally, the questions raised do not require the application of constitutional law to be resolved. For example, in Maria Riesco Loyola v. Colegio Alicante del Rosal S.A. (1 June 2011), a female employee sought to have her dismissal by her employers during her maternity leave declared unjustified; on appeal, the Supreme Court upheld lower court rulings against the employer on the basis of the labour code. ³¹ In a few cases, constitutional questions are raised. For example, in María Angela Salazar v. Universidad San Sebastián (19 May 2009), concerning the harassment and dismissal of a pregnant university professor and dean, the Court, on appeal, found that employers are limited by the constitutional rights of workers, particularly with respect to their private lives and dignity.

Sexual and Reproductive Health

Legislation and process in this policy area is perhaps more divergent than the other two. Reform in sexual and reproductive health has been very limited in Chile and generally has not been oriented towards gender equality. Argentina has passed more laws in this policy area, and the laws have been far more comprehensive. Although the Argentine Constitution does not have specific provisions on sexual health and reproductive rights, constitutional rights have proven useful to advocacy efforts. A researcher on sexual and reproductive health rights in Argentina clarified that:

At the same time, conservatives have also utilised Article 75 and the constitutional status of international treaties, particularly the American Convention on Human Rights and the Convention on the Rights of the Child, which recognises a right to life from conception. ³² The Supreme Court’s interpretation of this provision is that it should not conflict with women’s health and right to equality, but conservatives, especially conservative judges in the lower courts, have referred to this treaty to justify their stance against contraception and abortion in all cases.

The language of women’s constitutional rights, human rights, and international treaties that have constitutional status, appears in most of the laws in this policy area as well as in legislative floor debates in Argentina. That is, legislators draw on arguments related to public health, reduction of poverty, and equality of men and women, but they also draw upon constitutional rights frequently to make their case. In debates in the Senate and Chamber of Deputies on the Law on Sexual Health and Responsible Parenthood (No. 25,673/2003) for example, legislators repeatedly referred to constitutional rights, and the rights enumerated in international treaties. ³³ In her opening statement introducing the bill, Representative Cristina Guevara argued that sexual health and responsible parenthood are basic human rights and that the state must guarantee and ensure that citizens can fully exercise them. She went on to list all of the international treaties and conventions that pertained to this law, especially CEDAW and Article 75, and section 22 of the Constitution. Representatives frequently cited equality of opportunity and women’s rights as reasons to support the law. ³⁴ Similarly, in the Senate, Senator Eduardo Menem cited constitutional rights, international treaties such as CEDAW and their constitutional status, and also referred to comparative constitutional law in his arguments in favour of the Law on Sexual Health and Responsible Parenthood. Among other arguments, Menem noted that the right to sexual and reproductive health is already “consecrated” in CEDAW, “today all we are doing is regulating it.” ³⁵ Floor debates concerning the Law on Surgical Contraception, which entitles adults to tubal ligation or vasectomy through the healthcare system, as well as the debates from the Law on Comprehensive Sexual Education, repeatedly refer to gender equality as provided in the Constitution.

Constitutional rights also are written directly into the text to justify the need for the law and to obligate the state to act. For example, Article 2 of the Law on Comprehensive Sexual Education and Article 4 of the Law on Sexual Health and Responsible Parenthood specifically refer to CEDAW, the Convention on the Rights of the Child, their constitutional rank, and the need to bring education into compliance with these treaties. Importantly, these rights are also drawn upon to require the state to ensure access for all women. Thus, the Sexual Health and Responsible Parenthood Law not only removed legal bans to access, but it also obligated the state to fund these services. A national decree (No. 1.282/2003) issued soon after legislation noted that the rights enshrined in international treaties and in Article 75 of the National Constitution required the state to “promote and implement positive action measures in order to guarantee the full enjoyment and exercise of the rights and freedoms” recognised therein. Similarly, the Law on Surgical Contraception also placed financial obligations on the state to ensure that it is covered by insurance and provided free of charge.

Not surprisingly, these programmes faced opposition in some provinces and significant opposition from conservative groups, especially the Catholic Church, that challenged aspects of the national health programme in different domestic judicial venues (Piscopo, 2014). In particular, legal challenges were lodged against the distribution of emergency contraception and sex education programmes (ELA Equipo Latinoamericano de Justicia y Género, 2009: 269–270).

Abortion policy has followed a similar pattern: the Supreme Court has taken a relatively progressive approach grounded in constitutional rights and international law, but its decisions are routinely ignored by conservative judges and officials in the provinces. Article 86 of the National Criminal Code made abortion a criminal act in all cases except for when the mother’s health is at stake, or in the case of rape of a mentally incapacitated woman. In a landmark decision in 2012, the Argentine Supreme Court ruled that abortion was legal in all cases of rape including for minors. ³⁶ In the F.A.L. case, the Court argued that interpretation of Article 86 needed to be consistent with international treaties that Argentina had ratified and thus had constitutional status. It went on to consider the right of the pregnant woman to choose against the right to life of the foetus. The Court ruled that Article 1 of the American Declaration of the Rights and Duties of Man and Articles 3 and 4 of the American Convention on Human Rights ³⁷ were limited and must be balanced against the right to liberty, equality, and the dignity of every person, and that “no absolute right to prenatal life exists” (Noguera, 2019: 366). The Court further argued that Article 75 of the Argentine Constitution obligated the legislature to go beyond decriminalisation and to take steps to ensure that women had access to abortion. That is, the Supreme Court not only ruled that the state could not trample individual rights but also cited constitutional and international law to require the state to take proactive measures to ensure that women have access to abortion. Challenges from lower courts have greatly limited the impact of this ruling. ³⁸ However, many of these same arguments made their way into the legislative debates that came a few years later.

Since the transition to democracy, over 50 legislative bills concerning abortion have been proposed; none made it to the floor for debate in the National Congress until 2018 (ELA Equipo Latinoamericano de Justicia y Género, 2009: 276). In 2018, women’s rights activists mobilised in large numbers to get abortion legalised up to fourteen weeks. The movement and the legislative debates generated conversations throughout the country. The Congressional debate for legalisation mirrored many of the arguments made by the Supreme Court in the F.A.L. case and the Inter-American Court of Human Rights ruling in Artavia Murillo v. Costa Rica. In Arta Murillo, the Inter-American Court ruled that the right to life shall be protected “in general,” but the embryo could not enjoy the same rights as a person and that the right to prenatal life is not absolute. “The Arta Murillo decision was constantly cited during Argentina’s Congressional debate” (Noguera, 2019: 379). Although the bill passed in the lower house, it failed in the Senate. Just as conservative groups, especially members of the Catholic Church, interfered with the implementation of the Sexual Health Law and the F.A.L. ruling, they were able to prevent reform of the abortion law. However, women’s organisations continued to press for change and, just two years later, the bill passed.

Chile has lagged behind with respect to reproductive rights. In 1989, in the twilight of the authoritarian regime, abortion was criminalised. ³⁹ Other areas of reproductive health such as sterilisation, education, and comprehensive access to family planning were already quite restrictive. Moreover, any discussion of reproductive health, particularly the decriminalisation of abortion, sterilisation, and the approval of the morning-after pill, has been dominated by references to Article 19 (1.2) of the Chilean Constitution, which “protects the life of those about to be born.” As one health sector researcher explained, “the Constitution makes it difficult to guarantee women’s rights to reproductive health” (CS3308). The most significant reproductive health laws are the Fertility Law and the legalisation of abortion on some grounds.

The Fertility Law (No. 20,418/2010) deals with sexual and reproductive health information including emergency contraception. Proponents of this law drew upon the language of human rights and even women’s rights far more often than they did in other legislative debates. For example, Representative Osvaldo Palma stated that “we’re dealing with the freedom to choose, non-discrimination, the rights of women, the rights of families, the right to a free and informed decision as to when and how many children they want and can have,…their sexual freedom.” ⁴⁰ The law is limited to providing information about contraception and family planning to women and girls over fourteen years of age. The most controversial part of the law is allowing emergency contraception which conservatives, and the Constitutional Court in 2007, argued was abortive and thus violated the constitutional right to life. ⁴¹ In contrast, Argentina’s laws are far more comprehensive and include education on sexuality, consent, and gender equality. Moreover, unlike the Argentine law on sexual health and responsible parenthood, Chilean laws do not obligate the state to ensure access or to provide contraceptives free of charge through the healthcare system.

Chile was one of the six countries to ban abortion in all cases and one of the strictest – imprisoning women and doctors for seeking or performing an abortion. Thus, the partial decriminalisation of abortion was a milestone in women’s reproductive rights. In 2017, the legislature passed a law decriminalising abortion on three limited grounds: risk to the mother’s life, fatal foetal malformation, and in cases of rape. In the floor debates, legislators cited women’s rights to equality, non-discrimination, dignity, privacy, and physical integrity in the Constitution and international law. At the same time, conservatives challenged the constitutionality of the law on the grounds that it violated Article 19, No.1, which protects the life of the unborn. ⁴²

The Constitutional Court upheld the constitutionality of the law in a complex and divided decision (Rol 3729 (3751)–17). In its reasoning, the majority states that questions regarding pregnancy and motherhood should be interpreted in the context of gender equality as it has been defined by the Constitution, the legislative branch, and international law. It devotes significant space to constitutional and legislative changes that support gender equality (particularly the 1999 sex equality provision), and also refers to developments in international law regarding gender-based violence and gender discrimination. Furthermore, the decision finds the legislature has reasonably balanced the fundamental constitutional rights of the mother with a legally protected interest in the potential life of the unborn. ⁴³ The Court’s decision meant the law could be promulgated. ⁴⁴ However, the decision also expands the circumstances for the exercise of conscientious objection, and may make accessing the procedure difficult.

Chile and Argentina draw on the same international human rights treaties and case law to make the argument for balancing and a woman’s right trumping the rights of the foetus in some cases. Can we see a difference based on the status of international law in the constitution? One notable difference is that Argentina’s Supreme Court and members of the legislature do not simply require the state to refrain from trampling individual rights, but also take a proactive stance: “Argentine Constitutional law often places obligations on the state modelling itself after international human rights law” (Noguera, 2019: 369). Both lawmakers and high courts require the Argentine state to take steps to ensure that citizens have access to services and benefits that the legislature has provided for in law.