Constitutional Roundtable
presents
Veronica Undurraga
Director, Women’s Program
Human Rights Centre, University of Chile Law School
The Use of the Proportionality Principle in the Judicial Review
of Abortion Laws: Problems and Possibilities
12:30 – 2:00
Wednesday, November 17, 2010
Dining Room, Flavelle House
78 Queen’s Park
I am interested in the possibilities that the use of the proportionality principle open in the judicial review of laws regulating abortion. The paper has a practical aim, but to comprehend some of the arguments that are raised before the courts in such cases, it also addresses some broader theoretical questions related to different conceptions of rights, negative and affirmative constitutional duties, limitations of rights, and incorporation of international human rights law into domestic jurisdictions, among others. After reading comparative constitutional decisions on abortion, I am convinced that different theoretical approaches to these complex issues play a key role in the way the proportionality principle is applied (or not applied) in the resolution of abortion cases. The paper also addresses some hidden moral concerns that I have identified in many decisions as the source of discomfort for judges and that I believe have an impact in the outcome of the cases. The practical objective of this paper is to provide judges of Latin-American constitutional courts, with a reasoned framework of thinking about this topic, which would replace the current intuitive grounds of decision-making that are pervasive in our courts. This intuitive approach is highly detrimental to women’s rights because it incorporates an absolute conception of the right to (or value of the) life of the unborn, as well as gender stereotypes that result in the invisibility or underestimation of the rights of women. The proportionality methodology, by ordering the questions of the test in consecutive stages, obliges judges to think not only about the importance of the protection of unborn life, but also about the effectiveness of the law to provide such protection. Additionally, it makes judges consider alternative means of protection different from criminalization, and induces them to pay attention and name the restrictions to women’s rights that the protection of the unborn entails. Latin-American advocates of women’s rights have always tried to make judges address these questions, but results have been elusive because their substantive claims for recognition of women’s rights are discarded as political or emotional, but not legal. By proposing the application of a legal methodology of conflict resolution, instead of focusing directly on the substantive justice of women’s demands, I expect to contribute by making judges ask the right questions. To succeed in this apparently unambitious purpose would actually be an important achievement in the Latin-American constitutional context.
Verónica Undurraga is the Director of the Women’s Program at the Human Rights Center, an academic institution working throughout Latin America and based at the Law School of the University of Chile. She is a member of the Latin American Law Professors’ Network (Red Alas), of the organizing committee of SELA (Seminar in Latin America on Constitutional and Political Theory, a Yale Law School Project) and of the board of Fundación Pro Bono, a non-profit institution that organizes the Pro Bono practice of lawyers and law firms in Chile, and works for equal access to justice. She received her J.D. from the University of Chile and her LL.M. degree from Columbia University. She is finishing her PhD thesis entitled “An Interpretative proposal of the duty to protect the unborn under the Chilean Constitution in the context of the legal regulation of abortion," under the direction of the former President of the Inter-American Court of Human Rights, Dr. Cecilia Medina.
For more workshop information, please contact Nadia Gulezko at n.gulezko@utoronto.ca.
