 Okay, well, hello and welcome to the first in another year's exciting lineup of talks in the Health Law Institute's Health Law and Policy Seminar Series. Now it's 20th year, so we should be releasing balloons from the ceiling or something. I'm sure you all got your complimentary glass of champagne. No? Anyhow, so I'm Sheila Wildman, I'm Associate Director of the Health Law Institute. I just wanted to take a minute as we kick off this year's lecture to introduce you to Constance McIntosh, who is Director of the Health Law Institute, and also in the back there, the Stripes Barbara Parter, who is the Institute's administrative assistant. She's been vital to the success of this seminar series for every single one of those 20 years running. So some of you have been long-time active audience members. Others have joined us for the first time today, and in many cases we welcome each of you into this community, which is a mix of academics, students, advocates, policy makers, citizens, concerned with the many ways that health, law, politics come together to pose some of the most difficult challenges of our times. We encourage you to take in as many of the lectures, okay, sandwiches, cookies, as you're able, and I'll student to pick up one of our, do we have some of our seminar series posters around? Right there, one of our seminar series posters to help us get the word out about this year's upcoming lectures. So with that, let me turn to today's speaker. We're very fortunate to have welcomed these past few weeks as a visiting scholar with the Health Law Institute, and as our first speaker in this year's seminar series, Professor Veronica Anderega. Professor Anderega is in the Faculty of Law at Universidad Aldolfo Ibanez, does that sound good? In Chile, where she teaches courses in the areas of constitutional law, human rights law, legal reasoning, and gender. She received her law degree and PhD from Universidad de Chile and her LLM degree from Columbia University in New York. Professor Anderega is a member of the Latin American Law Professor Network, the Chilean Society for Public Policy, and the Organizing Committee of the Seminar in Latin America on Constitutional and Political Theory, a Yale Law School project. As you'll hear, she's currently advising the Ministry of Women's Affairs and the Ministry of Health in Chile on the partial decriminalization of abortion. Professor Anderega's publications have addressed women's rights, gender discrimination, and autonomy. This includes work in comparative and transnational abortion law. Indeed, she has a chapter in an important book on the subject that was co-edited by our own professor Joanna Erdman, which leads me to our esteemed commentator today, who will be offering a response to Professor Anderega's lecture as part of today's offering. So Professor Joanna Erdman is a member of the Health Law Institute, and she holds the McCain Chair in Health Law and Policy here at the Schulich School of Law. Her research concentrates primarily on sexual and reproductive health law in a transnational context. She's published in leading international journals on topics such as harm reduction and safe abortion, the regulation of emergency contraception, and HPV vaccines policy. Her book, Abortion Law in Transnational Perspective, co-edited with Rebecca Cook and Bernard Dickens, was recently translated into Spanish, and as I've noted, includes a chapter written by Professor Anderega. We're so lucky to have both these accomplished feminist legal scholars with us in conversation today. So Professor Anderega will first speak for roughly 40, 45 minutes, followed by a response from Professor Erdman, and then we'll open it up to your questions. So without further ado, I will be Professor Veronica Anderega. Good afternoon. I want to thank Constance McIntosh for the opportunity of visiting the Law School and its Health Law Institute and share this lecture and the talk at the Law Faculty Seminar last week as well. Also, I am very grateful to Joanna Erdman for being a wonderful host, and her and Sheila Wildmine, and Jennifer Luling, and Jocelyn Douni, and Susan Sherwing, all of them for their very contractive comments and ideas regarding my projects. Barbara Carter and Tiffany Cooling Yewells have also been very helpful in every respect. Thank you very much. Today Chile is one of the six states in the world where all kinds of abortion are illegal. Four of these countries are in Latin America. In Carawa, El Salvador, the Dominican Republic, and Chile. The other two are Malta and the Vatican. In most Latin American countries, abortion is illegal under one or more of the following restrictive indications. To save the life, sometimes to protect the health of the pregnant woman when the fetus is non-viable and in cases of rape. Only in the federal district of Mexico, Cuba, Puerto Rico, and Uruguay, there is an abortion on demand during the first weeks of pregnancy. This doesn't mean that abortion is available to women who would qualify for a legal abortion. In many cases, there are serious barriers to access to the procedure. In most of Latin America, the current challenge is to ensure that the law allowing for legal abortion is applied, and that illegal abortions, which are the vast majority of abortions performed in the region, do not kill women. In Chile, our challenge today is that Congress approves a bill that President Michel Bachelet submitted last year and that would decriminalize therapeutic abortion when the woman's life is at risk in cases of non-viable fetuses and when the woman is raped. Why President Bachelet, who is a feminist, a socialist, a physician, and a woman who was the first executive director of UN Women, the United Nations entity for gender equality, why she would go for such a restrictive law? Well, because although the bill has the public, although silent, support of 70% of the population, this support contrasts with the strong and vocal opposition to the bill in Congress, even within some parties that are members of the governing coalition. Bachelet is not only negotiating with the conservative right, but also with her own political allies. I cooperate with the Ministry of Health and the Ministry of Women's Affairs trying to produce legal arguments and to think about legal strategies that would prevent as much as possible that during the legislative discussion and later during the judicial review of the bill by the Constitutional Court, some key provisions are removed from the draft law. We want to ensure that at least those few women who would qualify for an abortion under the three grounds of the law have their dignity, autonomy, and basic rights respected. This is not easy. Even good legal arguments fail when confronted with religious or ideological fundamentalism. Some of our adversaries are influential and even sophisticated lawyers, professors, politicians, physicians, but our most powerful foe is stigma, the silence that comes with stigma. In the history of abortion decriminalization worldwide, it is common that left-wing parties have led the fight for women's right and abortion decriminalization. This is not the case in many Latin American countries. The Latin American left has a commitment to classic quality and social justice issues, but at the same time it also has a very conservative gender discourse. We have otherwise progressive left-wing presidents such as President Correa in Ecuador speaking against the gender ideology, which is a derogatory expression that appeared in the aftermath of the UN Conference on Women in Beijing 1995 and that it is a creation of the Catholic Church and the religious right. In Chile, for example, President Bachelet promised during her presidential campaign that she would send a bill to Congress on reproductive rights. She is withholding that promise. The only chance she has to have the abortion bill approved is to separate abortion from the language of reproductive rights and to present legal abortion as the regulation of exceptional health conditions in which the maternal duty to carry a pregnancy to term cannot be demanded by using the threat of criminal prosecution. Most of left-party politicians point to the disproportionate effect of criminalization of poor women, but they are quick to clarify that they are not advertised and that the bill should ensure that the rape indication does not open the door to abortion on demand. The right has made its opposition to abortion part of its identity. The left, on the other hand, has estranged itself from feminists who find no attractive alternative of political affiliation in traditional parties and for that same reason have very little influence on power sphere. The class perspective is undeniably important when addressing abortion in Latin America. However, new demands for recognition respond to other cultural dynamics that the left parties had not been able to represent. In Chile, very profound cultural changes occurred as a consequence of the military coup led by Pinochet in 1973. The military government, which lasted 17 years, made a dramatic change in the economy from a socialist system to probably the most neoliberal system in the world. Chile under Pinochet was the experimental ground for applying the libertarian economic theories of Milton Friedman under the leadership of a group of economists who were Friedman students at the University of Chicago. However, and paradoxically, the military and the economics elite supporting economic liberalization were very conservative in their views on gender, family, religion and almost all social matters and actively imposed those views suppressing the incipient expressions of gender freedom that appeared in the 70s. One of such expressions was the practice of interpreting the then existing therapeutic exception to abortion criminalization to include broader grounds for abortion. It was only at the end of Pinochet's regime in 1989 that therapeutic abortion was criminalized in Chile. Leaving under the dictatorship its gross and systematic violation of human rights and its radical economic transformation changed our whole life system drastically from a closed and strongly communitarian society to a distrustful, competitive, globalized and consumerist society. As a result of these traumatic experiences Chilean society is now very contradictory in many ways with a rare mixture of fume-blown individualistic practices and a clash of new libertarian demands and traditional communitarian discourses on family, gender and religious issues. With the return to democracy we have tried to get rid of authoritarian politics and we have made efforts to humanize our neoliberal legacy which is still very much alive. But what is clear is that globalization hit hard and that although narratives about our identity are contradictory it is now impossible to think of Chilean culture as oblivious to what is happening in the rest of the world. It is paradoxical. One would think that only under the power of weapons liberal economy could coexist with very liberal cultural values but it seems that it's not that simple as the situation in Chile and for example in Ireland proved. Nonetheless, the individualistic lifestyle that neoliberalism brought with it has contributed in its own way to the increasing use by women and other discriminated groups of the language of human rights a language that places the individual person as the core priority over communitarian concerns. So we may not have the left parties to fight for women's reproductive rights but we can take advantage of cultural and legal globalization through the international human rights law. We can and we have learned from the experience of others who have confronted the same challenges before us. We can cite international foreign case law. We can rely on recommendations made by the World Health Organization and by human rights monetary body. We work together with other academics and activists in our region and around the world to support our quest for gender justice. Let me give you some examples of how this works. The Chilean constitution in its life provisions says that every person has a right to life and in the next paragraph it adds the law shall protect the life of the unborn. Does this provision mean that the unborn has a right to life too? Can abortion be decriminalized if the unborn is entitled to a right to life? The meaning of this provision is contested in the Chilean legal academia. The constitutional court ruled in 2008 that the public distribution of the morning after pill would violate this provision because although there was no scientific proof of harm to the embryo the possibility that the pill could kill it could be not be ruled out entirely. The court in a hundred pages decision didn't refer to autonomy of women at all. So, how we are dealing with these legal obstacles? Well, we decided to frame the issue in the way the prestigious German constitutional court did it in its 1975 abortion decision. On that decision the German constitutional court said that unborn life is a protected value under the life and dignity provisions of the German constitution and that women must bear the burden of pregnancy unless the burden becomes so intense that the law cannot demand from the woman to keep the pregnancy. In those exceptional cases the law should defer to what the woman decided according to her own conscience. What is interesting about this decision is that it was the first of a chain of rulings delivered by different constitutional courts in Europe and then Latin America through a long period of time and as late as 2010 when the Portuguese court delivered its last and notable decision on abortion. All these rulings including the second German 1993 decision the Spanish decision of 1985 the Colombian decision of 2006 the Portuguese 2010 decision among others have developed this core argument of non-demandability of the duty to keep a pregnancy under different circumstances. But as the recognition of women's autonomy and dignity have become stronger in the period between 1975 and our days in this cooperative development of the non-demandability argument the weight given to women's right vis-a-vis fertile protection duties have increased immensely. It has increased so much that the same core non-demandability argument now supports the current German and Portuguese abortion on demand regimes. These are all decisions that acknowledge a constitutional duty to protect the life of the unborn but that at the same time uphold the constitutionality of lost, decriminalizing abortion and even allowing abortion on demand. So I believe this is a good friending for our current discussion in Chile. It is a framework that in its present application to our restrictive bill seems very conservative but that does not tie our hands for the future because it has proved its potential to include a more robust commitment to human rights which we will be able to do when the time comes in Chile when we see women as first class members of our community. So we develop an interpretation inspired in the German decisions with the clear conscience that our constitutional court looks up to the German court and that it is very difficult to argue that the German court shows no respect for the dignity of human life. Comparative constitutional law on abortion is an important reservoir of arguments and responses to difficult legal issues surrounding abortion A number of other decisions had been significant too. For example, we refer to the Canadian 1988 Morgan Tyler decision when someone proposes to add excessive or complicated certification procedures that would put a woman who needs a therapeutic abortion as a higher risk due to the delay. We point to the 2012 Brazilian Supreme Court decision on Anais Fali and Cephali to argue that the right to life decision should not be interpreted to include unviable life. And to the Spanish 1985 and the Colombian 2006 decision which ruled that affirming the duty to protect the life of the fetus when the woman has been raped treats her as a mere instrument of reproduction and violates her dignity. The Mexican 2008 decision helped us because it says that when the constitution imposes a duty to protect unborn life the legislator can choose the most appropriate means to achieve that goal which may not necessarily be criminal punishment. And we take that idea further one step further by citing the 2010 Portuguese decision which ruled that the state can only criminalize abortion if it gives evidence that it is the least harmful measure available to protect the fetus. For otherwise criminalization would be unsconstitutional. Most jurisdictions rule out the possibility that institutions claim the right to conscientious objection and restrict the use of objection to health professionals directly involved in the interruption of pregnancy. We need those rulings and we make use of them. Our adversaries do the same when occasional foreign court decisions are convenient for them as it happened with the U.S. Supreme Court ruling in the Hobby Lobby case which opened the door for non-religious for-profit companies to make use of conscientious objection but not paying for insurance coverage of contraceptives. This might surprise you but the Hobby Lobby decision was discussed by Chilean law professor on the main newspapers for several weeks and encouraged the owners of several clinics to announce that the constitution will not perform legal abortion if the law is passed. Of course, foreign law is not binding in Chile. Comparative law is only an experienced friend but we know that cross-festilization of constitutional ideas in some issues such as abortion, same sex marriage, assisted suicide or death penalty is a reality. We must be careful not to overlook relevant differences among jurisdictions. We know the legitimacy of the comparative exercise is called into question if the inquiry is not sensitive enough to context. However, we feel ourself as building a friendlier legal context for women one that is counter-cultural because our current laws are men's laws made for women's life and women's expression. Much of what has been done in other countries is a source of information and inspiration in our local undertakings. Abortion makes the discussion about context more complex. Beyond national frontiers there is a remarkable commonality in the way women around the world experience unplanned pregnancy and in the reasons they give to explain their decisions to abort. We may be accused of betraying our culture when we invoke foreign or international law to challenge some practices of our community. But comparative and international human rights law become a friendlier and an alternative context for us and we invoke it as a powerful source of new meanings and understanding of domestic constitutional law. We also make extensive use of international human rights law. Most of the Latin American countries have created human rights treaties into their domestic constitutional laws during their political transition to democracies in the 80s and 90s. This doesn't mean that there is no resistance to the actual application of international conventions in many matters. But it does mean that we have a legal argument to make use of these international sources of law. Human rights monitoring bodies have been consistent in recommending Chile and Salvador, the Dominican Republic and Nicaragua to decriminalize abortion at least under the three grounds included in the Chilean bill. Their individual decisions from the Human Rights Committee against Peru and Argentina and the Sedol Committee against Peru declaring that those states violated women's rights when they did not secure access to abortions that were legal according to their domestic legislations. Human rights bodies decision exhorting for the application of legal abortion legislation are also consistent with several decisions of the European Court of Human Rights making Poland and Ireland responsible for their lack of regulations and protocols to ensure that consensual objection and other obstructive practices impair women's access to legal abortion. The Inter-American Court and Human Rights has not had the opportunity to decide a case on abortion yet but it has granted provisional measures ordering El Salvador to take all necessary measures to protect the life, health and personal integrity of a young woman with a life threatening pregnancy. Also in 2012 the Court gave its official interpretation of the life provision of the Inter-American Convention of Human Rights concluding that it is not admissible to grant the status of a person and that the protection of unborn life and the Convention is not absolute but rather gradual and incremental according to its development. This is a landmark decision for it provides ground for challenging laws in countries that refer to absolute protection of life from the moment of conception criminalizing access to abortion under all circumstances. Political negotiations about abortion are extremely difficult in our countries. As I said before in Chile we are working hard to preserve some key provisions of the bill. We want the law to say that an abortion performed under the three extreme situations addressed by the bill is not a wrongful act and that it is a legitimate provision of a healthcare services that should be covered by health insurance plans or to be paid by the state if a woman cannot pay for it. It is not enough for us to allow the judge to excuse the woman from going to jail while the interruption of the pregnancy itself remains a crime on the books as the opposition is proposing as their second best. We do not want women to go through the process of criminal prosecution and be at the mercy of a discretionary decision of a judge. We want the law to recognize women as a legitimate source of authority over her decision and we believe that it should guarantee the public provision of reproductive healthcare services women need. We want women who are raped to trust their doctors and get the help they need. For that reason the original bill did not require either women or doctors to report the rape to the police. We believe it is not the role of doctors to enforce criminal law. However, the government had to compromise and now in its current form the bill states that doctors must report rapes to public prosecutors. Public prosecutors may investigate against the women's will although and this was what the government got prior to collaborate with the investigation. Regarding the rape indication the role of medical professionals may be very problematic. According to the bill the rape certification should be made by the medical team. This provision seeks to separate the provision of healthcare services from the legal issues regarding criminal prosecution. However, we know from the Argentinian experience that health professionals may not be willing to be the ones responsible for certifying that the pregnancy was a result of rape. This is beyond their capacity in many cases. They may object to abortion under what they see it is a not medical indication. They may not want to take the risk of certifying a rape that is later disproved by the criminal court and they may not want to be stigmatized as favoring abortions. In Argentina, the Supreme Court had to intervene with a very clear ruling prohibiting doctors to continue with a non-legal practice of asking for judicial permission to interrupt a pregnancy on rape grounds. It is difficult to anticipate which form of certification of the rape indication is the lesser evil for women. It might be the case that now that doctors must report when women claim that they have been raped, they will be more willing to perform abortions. As a general rule, our criminal law guarantees adult victims of rape that no criminal procedure for rape charges can begin without the victim's consent. The modification the House of Deputies introduced to the abortion bill requiring doctors to report the rape and allowing for criminal investigation without the victim's consent would be an exception to this general rule. I believe this differential treatment is unconstitutional on its face. However, we have no raised the issue because there is a risk that the legislature changes the general rule and that all women lose the right to decide whether or not to trigger criminal prosecution for rape charges. After the law is approved, if it is approved, we may try to promote or litigate for an interpretation of the new abortion law that would secure all women all pregnant and non-pregnant rape victims the right to decide whether or not they want to pursue a criminal investigation against their attackers. It remains to be seen if the approval of this ground for abortion will make more women and girls rape victims to approach the health system in search for assistance. If that happens, it will be an opportunity to raise consciousness of the hidden sexual violence many women experience in their relationships and of the pervasive reality of children's sexual abuse to raise consciousness and to do something about it. We should figure out ways to make these women and girls feel that they may speak about their rapes and that they will find a safe mental space and that they will be provided with some basic health and social services that can make a difference in the way they live through and hopefully move beyond these experiences. We want women who qualify for legal abortion to have access to the procedure. For that reason the bill limited consensus of objection to the physician who directly intervenes in the determination of pregnancy. We know from other countries' experiences that conscientious objection may become a form of civil disobedience an unsurmountable barrier to access to legal abortion. Also where stigma is so strong doctors use conscientious objection exceptions even when they don't have a real religious or philosophical position against abortion. In Brazil, a student showed that 85% of gynecologists supported the right of rape women to an abortion but only 35% of them would actually accept to perform the abortion. In Uruguay, studies shows that doctors objection varies according to the method applied to interrupt the pregnancy. There are lower levels of objections to medical abortion than to surgical abortions. So we must address stigma and we must encourage doctors to understand that they have to respect the woman's decisions when the law gives her the option to continue or interrupt her pregnancy. We want women to feel empowered. One of the conditions that Christian Democrats imposed to vote for the bill is a strong counseling they call it accompaniment procedure for all women who would qualify for legal abortion. For me, this is a key feature of the bill. One that I think may define the way the bill visualizes and treats women. Counseling can become an arena of ideological dispute and women's control as it had happened in many states in the United States for example. It may be paternalistic disrespectful of women identities, it would infantilize women who suffer and impose gender stereotype upon them. We don't want that. It would be tremendously cruel and unfair to these women who are confronting the decision of abortion under these three difficult situations. We hope we can design the counseling program to become an offer of a variety of social services aimed to give material and emotional support to the woman and to provide her with a safe space to make her own decision on how she wants to live through her experience. Autonomy is not only choice although those choices integral to it. Autonomy is not independence although it implies to be free of manipulative and distorting influences and oppression. A woman who risk losing her life or who carries a non-viable fetus is dependent on doctors. A woman who needs access to legal abortion is irrevocably within the sphere of state regulations. The challenge is to extract the social and institutional relationships involved in the counseling procedure in a way that promotes women's autonomy instead of undermining it in ways that women feel that they have some control over the situation and that they can connect with their own emotions, desires and values in a non-threatening way. For this reason the government has declared that counseling should be always voluntary for women. It should be confidential, respectful and non-inducive to any outcome and that the information provided must be truthful and complete. There are many important things to think of regarding this piece of legislation. Regulations should be mandatory for all providers, clear and specific in their content and must include oversight and disciplinary powers that would enable the Ministry of Health to intervene where healthcare providers comply with these principles. Training of counselors and all personnel is very important. Here again we should learn from the experience of our countries and avoid making mistakes and replicate with practices. One very important feature of the counseling should be the social and quality health services the state offers. Women whose lives are at risk or who carried unbiable fetuses need sophisticated examinations and treatments. Women and girls who have been raped need medical, legal, social and mental health services. They may also need a job, a place to stay, a school support, etc. It is a whole web of social state services that should be created or accommodated to make women trust the state. I think it is a challenge for the Chilean state to have a context as a true welfare state and one that respect the dignity and the rights of women and girls. To finish I want to say that especially when talking to an audience like this one in a country where voluntary abortion had been taken out of criminal codes for almost 30 years I feel that what we are working for with so much passion in Chile and other Latin American countries has a surrealistic component. In our arguments to advance decriminalization we use the old resources first-born advocates using the 70s because this is the first time we discuss this issue in our societies and fears, old stereotypes and stigma you had to fight again so many years ago are very much present among us. But we also use the latest public health science evidences the newest understanding of women's equality and women's rights and the whole range of comparative experiences when we need to do it. We shift from the old to the new from the local to the global all the time it is a strange feeling of reenacting and creating at the same time. I know that they will come when Chilean women will be trusted in their decisions. In the meantime I hope that at least some women living through the appalling situation this bill addresses may be secured at least a small space where they may act autonomously and be treated with dignity. Thank you very much. Good afternoon everyone and thank you for joining us. Let me begin by thanking Veronica for coming to Halifax at Dalhousie and for sharing the work of yourself and many others who have been involved in liberalizing the abortion law in Chile. But also I think for today situating that very particular movement within a much larger legal and political frame. So Veronica and I became good friends while working on a joint project on transnational abortion law and promote the book. We published this in a collection in 2014 of which we are very proud and in 2016 we had the Spanish translation of the edition as well. So Veronica was one of 16 contributors to this collection and many of those contributors are from Latin America and together our effort for this collection was to take stock of major transformations that were happening in the field of abortion law. But we wanted to do so in a dynamic way. So we asked the question what are the ideas that are changing the ways we advocate, the ways we regulate, the ways we adjudicate abortion in law? What are really the new ideas that are transforming this field? And there are many ideas, Veronica, you shared many today with us and many that have been drawn from comparative work and international work. But for my brief comments I'd like to focus on one which is this idea of counseling. And this is because you identified it I think as one of the key features of the bill. It's also identified as one of the key flash points of the Chilean debate. And so why? Why is counseling so controversial? Well it's not because counseling is new in abortion regulation. No, this is untrue and it's not unique to the Chilean context either. It has long been a feature of abortion regulation. But what's changing about counseling is its normative significance. And by this I mean that it is a regulatory form that is being repurposed. It's coming to stand in for and represent a whole new set of constitutional values. And so traditionally and Veronica mentioned this counseling was seen and was used basically as a way to discipline wayward women. To bring them back into a befold, to reawaken their maternal instinct and their duty to protect the life of the unborn and it was those sets of constitutional values that were matched with counseling regimes. And so in other words, counseling measures were substituted for criminal prosecution. On the belief that they were actually a more effective way to prevent abortion than criminal bans. But there was also a different way always to read these books. And that was that counseling and especially the way its practice evolved over time progressively incorporated values of women's equality and liberty. And why or how? Well because at a minimum counseling and especially non-directive counseling recognizes and even respects women as the type of modern citizen who possesses the capacity for reason. You can reason with women, which is why you can counsel women. And the idea being that reason, this reason is something that the law must engage if it actually hopes to change behavior. And others I think have gone even further in supporting a counseling regime which is the idea that it actually might even better respect women's liberty and equality than the kind of liberal abortion laws and policies that we have in Canada. And why? Well because it actually takes a community interest in and a community responsibility for these decisions. In other words, it doesn't leave all of the responsibility but also all of the burdens for these decisions about whether to have children or not on women. Counseling and especially where women is married, with access to social resources it asks about and it even asks on those social conditions under which women make reproductive decisions. And so I think it's something worthwhile for us to think about in the Canadian context. Because with the decriminalization of abortion in Canada and when we moved abortion into health clinics counseling stayed a dominant tool of feminist abortion care. But the counseling looked very different in this new era. Where once it had served emancipatory ends in a kind of critical class consciousness raising, there were good ideas from the 70s. That's why we should in some ways not abandon them. Today counseling does very different kind of work. Yeah, counseling mostly is focused on self-care or self-encouragement. Now it's true of course to recognize abortion I think is an empowered response to an unwanted pregnancy it can be deeply affirming of women's equality and liberty but I think it can also disappear some very deep structural injustices of poverty and violence. In other words, by asking women to take responsibility to asking women even to take pride decisions, no matter how severe the constraints under which they act or how unfair the conditions under which they act is in some way to make abortion entirely a personal struggle and no longer a question of social justice. And so in conclusion maybe I'll thank Veronica especially for provoking us to truly think about the different kinds of work that counseling can do in our legal abortion regimes and to thereby I think see both the opportunities and the threats of counseling regimes. Thanks very much. I'll let you two field the questions yourselves so we're open for questions for we have roughly 20 to 25 minutes. Okay great talks both of you I have two questions I guess like directed to both of you I guess. One is that driving you to mention repurposing legal machinisms such as counseling and using it to increase women's autonomy. I was wondering if it's possible to repurpose other legal machinisms and the second question is Veronica you describe I think beautifully the process of legal change the constraints and I think I'm also personally very interested in the concept of legal change from a theoretical standpoint so I thought that your description was a beautiful description of the political social cultural aspects so I think that very neatly fits into I think theories of legal change and in that respect you describe sort of an incremental change and then there's a feeling like why is it happening so slow and I was wondering looking to the future do you think that future legal change in abortion law and cheating would keep on happening in incremental change also because political and social cultural push against legalizing abortion do you think we might have grand decisions of course to have like not incremental change or no grand changes so do you think how do you see future legal change in abortion law and cheating well thank you for your question it's very interesting I think that in the future the discussion might change but also as you said for different reasons not related directly to abortion for example we just change our electoral system and one of the legacies of Pinochet which was very intelligent from his part was to create an electoral system which is a binominal electoral system which basically what the consequences of it was that if you have a third part of the population going or approving one for example the right and in Chile the right has historically have the third of approval you will get half of the how do you say half of the seats in congress you know it was a very distorted a lot legal representation and that changed just last year so we now our congress we have an overrepresentation of the right for that reason and we have had it during the whole transitions and that why our transition has been so so slow that is the reason why in all kind of subjects so it's very slow but that will change and in eight more years the whole congress will have renovated and will have a proportional system electoral system which women's quotas and like a very progressive and well designed women's quota so that will make a big change I think and also the constitutional court is we are in the midst in the middle of constitutional reform right now discussion right now and probably the constitutional court will be reformed as well I don't know in what sense but that will change as well because now our constitutional court is half conservative and the other one is half centered liberal you would say so I think that it might be the case that if we change our constitution and that if our constitution because we are still leaning under Pinochet's constitution which is a very severe restriction it's a very neoliberal restriction for example and one of the pressures is to have a new constitution with more social rights for example so there will be many big changes not related to reproductive issues and impact on reproductive issues so I'm not sure that I think that in the that we will be discussing an abortion for demand probably in the next 10 years which is a short period for us for considering what we have we have done so far so your question was about the purpose of existing legal mechanisms or legal features I think this is the way radical law is done usually because you can really transform things by pretending to keep things the same and I have to say actually it was in the Chilean context and in listening to the way in which some of the reformers were thinking about the law that really blew my mind wide open this is in the sense that the Chilean bit it looks very conservative because it looks like you have these indications very narrow indications to allow abortion and this looks like something of another era and the reason why I think most of us treat indications based laws as very conservative is because it is giving permission to women to terminate in these circumstances when we believe it's warranted and so I've always seen them as acts of mercy or charity or sometimes they involve really regressive ideas of morality or chastity in the cases of rape indication in particular but when talking to a number of the actors in and outside of government they used to try to rethink what the indications meant they weren't about permissions they were now understood as circumstances in which we should defer to the decision making of women because these were circumstances that were difficult complex life circumstances this is an entirely different way of coming to indications and it was a way that again never mind counseling recognized women in their full lives inside of this otherwise quite conservative legal form so I think it's a great way of thinking that's the benefit of it is when you have these unstable concepts in law where you can see yourself in the law I can see myself in the law that's what gets passed through congress and the big challenge and I think it will be the big challenge in Chile is how the practitioners of the law see it because of course if the physicians who will be really the gatekeepers of access under this law treated as a permission based system they will see access be very restrictive whereas if physicians treat it and see it as this life circumstance in which I'm not the best judge of what should happen in this case but in fact my patient is the best judge of what should happen then you'll have a diversion my question four into related questions smash your grant about counseling requirements I'll just read them all because I think they will hopefully let themselves have comprehensive answers from each of you I don't see how a mandatory counseling requirement can be considered as empowering or feminist but the other side of that if it's not mandatory how is it regulated it's left up to individual family doctors who might be imposing their own views and conceptions of morality on the women who are coming to them because here for example you need to go through your family doctor you don't have a private clinic there isn't a way even in a place where we don't have a criminalized abortion number three is if you can trace it back far enough it seems to me that most counseling requirements are about trying to convince a woman not to have an abortion if you go back far enough so then if we're talking about counseling and I agree with you that there might be some positives we should also be talking about it after a woman has exercised a decision to have an abortion it shouldn't just be while she is making the decision again it's a nice set of thoughts and one thing that it leads me to ask a question about is whether the problem is the counseling or the mandating of it and if it's the mandating is the problem that it's only an abortion you know sometimes I tend to flip this and say you know what the real problem is is that we don't have counseling for so many different forms of health care do you know that it's actually it's about the mandating in this particular case because it suggests something about the nature of the procedure or the nature of the patient but in truth I mean what people desire in health care and what you often see as the claim is the harms of being left alone you know and the harms of having no resources no support in making decisions that we call the medical but that are truly personal and social in many ways and so I tend to think what happens if we flip it and I think it really depends on how it's practiced and the piece on mandating I think is important because as we know sometimes when you leave something to option or preference people who really need and could benefit the most from a service can't access it if it's on that basis so that's the way I tend to rethink of this idea of counseling I think I agree there's a world of difference between directive and non directive well we are the requirement that the bill had to include a counseling procedure is rather new so we haven't thought about its design so much so nothing it's settled but the government has sustained and I think it's very committed to it that the counseling should be voluntary so maybe you have to go to the first interview and you will receive information and you will receive the offer of different kind of services that you might need and also one of the propositions that were consented by almost everyone was that the counseling should include at least 10 sessions yeah I know of therapy so that means that in these cases those 10 sessions probably if the woman accept them because it's voluntary they will be after her decision you know so it sounds because it's not possible to have 10 sessions if a woman has a threat to his life or the fetus is unviable or the time passes and she was right so in a sense those features that had been proposed makes it easier to think that this should be voluntary because you cannot oblige a woman to go to a session of therapy and that also that it should be after that counseling if thought in a very supportive and integral way should be for women who decides to keep their pregnancy and also for women who decide to terminate it and it goes after the decision it's perfect so you go first question about the rule around reporting to the police and I'm wondering about what the relationship is between feminist groups who are arguing against that on the grounds of it's a barrier to access it's a violation of privacy it's stigmatizing women as we all lie allies with physicians who argue that's an inappropriate rule for physicians we cannot adjudicate we can't make the determination of whether or not it's true it's inappropriate for us as we should not be agents of the state and so on so have that group which has a very different tone and relationship with the government make the argument against the requirement that you report to the police and make the argument what is appropriate for us to do in relation to the rape requirement is for us to certify in the medical record that the woman has claimed to us that she was raped and that's it that's all so have them make the argument are you alive with them in that way to have them make that and do you think we'll make a difference if that was who was making it if that was who was making it well that issue hasn't appeared in the discussions when doctors go to testify in congress as experts if they represent medical society what they say is that their members are divided on the third ground on the rape ground and mostly they don't agree with the rape ground probably for these reasons because they realize that the responsibility will fall in them but they don't so they treated us and well we cannot talk about this because we don't agree we just can say that most physicians do not agree with this third ground because it's a non-medical ground and it's a healthy baby that's what you hear but I haven't heard a discussion in congress or when I had been with the groups on this specific issue I raised it because in Argentina had been a big issue and because and because the Argentinian decided that the woman had only to tell the doctor that she was raped in Colombia it is different in Colombia the woman has to go to the police for example and if she goes to the doctor first the doctor says you first have to go to the police and bring me the paper that says that you went and then we will proceed so I think that this issue will come later it hasn't they could be encouraged because it's a way they could be voluntary and so they don't come and say wow we're split in which case both sides can just pick the one they agree with instead they come united and say we are all agreed that if you have this requirement this is the best way to respond to it this is the appropriate way to have us as professionals and then it's harder for the congress to disregard them because it's it's a but I'm not sure which is the best way what would you say because I also agree with the feminist that women shouldn't be obliged to go to the police I don't know I'm saying they wouldn't have to go to the police they go to the doctor the doctors require nothing the doctor goes to the police it's that the doctor has to record in the medical record that the woman told him she was raped and therefore okay yeah but that won't pass you know because the argument is that she cannot be the party and the judge at the same time because she is not objective it's an interesting question though it's been happening in a number of other jurisdictions too which is basically this claim of a perversion of medical practice you know and so where it came up is one thing you have to know in the in general the societies of medical professionals are very conservative you know like so this also it just might be that they want out but they don't want to support it in either way they don't want the responsibility on this one way or the other because they don't want abortions in their clinics or in their realm of responsibility but in Ireland you have a brown suicide where if the unwanted pregnancy is a threat to the woman's life these are their own taking then that this can qualify under the life exception and what was interesting was the psychiatrists not all but a group came forward and said this is absurd right because we on a medical practice ground abortion is never a medically indicated intervention for suicidal ideation you know and to make us have to do that kind of work by putting it into a paradigm of physical health and a threat to physical health misunderstands our own practice and so it was an interesting kind of argument people were cautious on it because they thought no no no this is an avenue of access why are they closing it down but I think they were saying you know larger discourse around the abuse and abuse of the medical profession for state banks and I thought that was a compelling that that was a compelling point yeah so next moment taking over the question so I was fascinated by both your comments on the enormous challenge of working within these narrow formal exceptions and trying to build them into opportunities for affirming women's equality and autonomy potentially in some far reaching ways and in particular I'm going to take it back to counselling so I was interested in what you were saying about trying to find a way to turn the threat of counselling as a potential manipulative force into what means of autonomy and here I want to draw your comments into relationship with negotiations happening domestically around supported decision making as an alternative to guardianship and other forms of legal incapacity not specifically in the abortion context but more broadly so I was particularly interested in your comments about marrying some form of support and counselling to a broader claim of entitlement working with the word entitlement ethical legal to a web of social services as you put it that would be required to build trust between women and the state backed in some sense abortion providers and other gatekeepers so this idea of trying to build the platform for social and economic supports for meaningful choice in these women's lives that seems like the most massive radical project and it's the same project in a way as those who use the language of supported decision making here I think are working toward supported decision making someone to talk to someone to cover your values with at a more fundamental level it comes down to what are your options in your social and economic conditions so that's my little preamble to say is there a legal hook in Chile in your constitution otherwise for that broader social and economic argument that eventually even you may want to make or is it now sitting more as an ethical conception of relational autonomy or what have you that's a very interesting question we do have some examples that are being applied already on entitlements, on social rights and especially on health on the health context this was legal reform that was advanced by president Lagos who was also a socialist who came who was the second one to come after he was the second president after they came back of democracy and he made a system that the public health experts chose the health conditions that are most important for the Chilean population either because they are very grave or expensive treatment or because they are prevalence in Chile and those health conditions the people who have them entitled to be treated freely without pain even it's a universal entitlement so I can benefit for that for example my son who has asthma asthma for example can benefit from that if I want so there you have a number of health conditions that are freely offered by the state and that there are there's a guarantee that the state must provide within a time limit and whatever and the other program was launched by Bachelet president in her first period which is a program called Chile grows along with you and which is a program which begins with the first pregnancy when the woman knows or has her pregnancy test on a local health center up to when she has the child and the child enters the school system and that's it's a real really robust system of it's not only health health services but also it involves I don't know a lot of stimulation of the children they give books and music and when the child is born they have a in that sense it's like Finland it's like they get the grief and and cushion for breastfeeding and mobiles and books and so that's that's really very very progressive kind of health and services in a kind of a welfare state but it's like these pieces of welfare that we have there but and there is another example for extreme poverty which aims to contact those people who are strange from the state and so if you contact them then you open them a lot of it's a program which is called Chile Solidario which you offer a range of offers so we have some examples of how this can work it's interesting we have this author in a very quick way in the bizarro universe that is this place is that the constitutional book is the right to life of the award this is so fascinating about it because in regimes that followed and we track it in our book you know in the 70s there were these two landmark constitutional decisions Rofi Wade and the German decision was premised on this right to privacy on to yourself to make the entire decision the German decision was premised and the constitutional value that was found was the right to life of the unborn but what proceeded out of that was this idea that the best way to protect the life of the unborn was not through criminal prohibition but was through support of the pregnant woman in her decision making and as it moved into a more liberal counseling regime the underlying constitutional foundation was this positive obligation of the state to be the life of the unborn so it's a very unusual but it's why now today access to abortion is far better in Germany though the constitutional regime is premised on a right to life of the unborn than it is in America that is premised on the right to privacy and the German has a pro-life counseling regime they must say it's very German they must say the state has an important constitutional interest that you proceed with your pregnancy but you are the you are the, we recognize that you are the person who must take the decision and the state is willing to help you as much as possible and you can find the booklet translated into English for foreign people living in Germany with what they receive and when they go to abortion counseling you know and it's very supportive you can find it on the internet you're really interested in this issue very fascinating was that a group of nuns who was doing this counseling from the church because the claim was that they were not directive enough in their counseling and so the church has communicated them because of this more robust sense of support for women in their decision making in a kind of liberation theology type of understanding of the work totally, no there was for a long time there was a big tension between not only the nuns between the bishops who are like very sophisticated kind of theologists you know the German bishops and Pope John Paul II the second because in Germany the religious group can do the counseling you know that they have all these guidance but they can do the counseling so because the counseling is for life and the Pope said that they shouldn't do it because if they do it they were required if a woman decides to have an abortion they were required to to certify that the woman had gone through counseling and that certification was kind of a complicit and how do I say it? after complicit with the abortion so the Pope had that that point of view and the bishops said no what we are doing is really really very important because we are helping women to have their babies you know so there was a theological dispute that the Pope has simply closed because he enacted a decree that ended with a discussion you know but then the counseling that was doing in churches what they did is that they created private foundations the people working on that created public foundations private foundations that were not legally related to the church but it was the same thing and they continued doing that so there is a very nice article written by a feminist scholar called Mary Ann Case where she talks about her her experience of going to Germany with the idea that the German regime was like awful and being like almost convinced by the German feminist there that it worked so I'm going to have to pull a sort of pina-shake here as we're starting to go rogue on time so I'm very sorry that I took the question there but please come on down and feel free to ask any further questions that you might have of our speakers we've got to clear the room otherwise but let me just take this opportunity to thank Professor Underaga as well as of course Professor Erdman so Professor Underaga for sharing with us your wealth of knowledge and experience on Chilean history politics, law in light of transnational abortion advocacy and law and for reminding us of the importance of continuing to look beyond our own borders both to take account of the strengths and the cautions of other regimes as they affect in this case women's rights and interests and thanks to again to Professor Erdman for illuminating as ever the legal and political challenges that vex you know even as they open new possibilities for achieving global reproductive justice so thank you people