This guest post was written by Maria Alejandra Cardenas. Her bio and link to her American Comparative Law Review article on this topic is found at the end of the article

Over the past eight years, the Constitutional Courts of Argentina, Ecuador, Chile, and Peru have issued decisions banning or highly restricting access to emergency contraceptive drugs. These decisions have all followed a similar pattern in their arguments as well as the same order in which such arguments were considered. Prior to these cases, the battleground over the right to life had been limited to the field of abortion law; using birth control laws would have been considered unusual. This post offers a summary of this trend by looking at the structure of the latest of these Constitutional Court rulings, the decision issued by Peru’s Constitutional Court in 2009.

In 2004, a group of Peruvian citizens used a judicial recourse to challenge a resolution through which Peru’s Ministry of Health authorized the free distribution of emergency contraception pills (ECPs). The process reached the Constitutional Court which, on October 16, 2009, interpreted the Constitution as bestowing a “right to life” from the moment of conception. That is, the Court decided to adopt a stand according to which conception happens at the moment when an ovum is fertilized, based on the understanding that from this point on there exists a “unique individual,” genetically speaking.

Technically, the plaintiffs on this case recognized (though not explicitly) that ECPs did not cause abortions, that is, that they were not abortifacients. An abortion is the termination of a pregnancy; in order for an abortion to take place, there must have been a pregnancy. Medical science and every major health organization in the world agree that pregnancy only begins at the moment in which a fertilized egg is implanted in the uterine wall. This is why the World Health Organization, for example, as well as other leading global health policy organizations, have always asserted that ECPs are not abortifacients.

Thus, while the plaintiffs were (contrary to all precedent) claiming that ECPs were abortifacients, they were not claiming that these drugs could terminate a pregnancy. They argued, rather, that ECPs could prevent an already fertilized egg from implantation in the uterine wall. This led the way for the Court — which then had to decide whether or not ECPs are abortifacients — to identify whether or not ECPs could prevent a fertilized egg from being implanted in the endometrium, that is, whether ECPs could prevent a pregnancy. After examining the scientific evidence, the Peruvian Court declared the existence of a reasonable doubt. That is, they declared that a zygote is materially not a person (it is indeed not even an embryo), nor is it legally a person before international law. But despite this admission, the Court in fact assumed otherwise. After adding that they identified a “reasonable doubt” and thus the establishment of the zygote as a person entitled with a “right to life,” the Court ruled in favor of the plaintiffs, resulting in a ruling that severely restricted emergency contraception.

Even after the Court conferred the zygote with the “right to life” of a human being, the ruling failed to deliver a balanced decision that supports human rights, by its failure to explicitly recognize that the existence of a fertilized egg does not nullify the status of women as subjects of human rights. Instead, the Peruvian Court (and also the Argentine, Ecuadorean, and Chilean Courts) present a clear human rights violation — of women’s rights — as if it is comparable with an entirely hypothetical violation, i.e., the rights violation of a fertilized ovum that might possibly have existed if a fertilized egg had not been prevented from implantation in the uterine wall. By this legislation, an indisputably human person who has human rights that are on the verge of being violated has been sacrificed in the name of conjectural assumptions woven together in a legal argument to create the appearance of a person.

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Maria Alejandra Cardenas has an LLM degree from Harvard Law School’s Human Rights Program and an LLB from Universidad Externado of Colombia. She currently works at the Center for Reproductive Rights in New York as a Legal Fellow for Latin America and the Caribbean in the International Legal Program, thanks to an Irving R. Kaufman fellowship awarded by Harvard Law School. This post summarizes her article, “Banning emergency contraception in Latin America: Constitutional courts granting an absolute right to life to the zygote,” Houmbolt American Comparative Law Review 6 (December 2009), p. 359. Available at http://haclr.org/index_archivos/Page359.htm.

 
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