By: Pablo A. Proaño
The Ecuadorian Abortion Law is once again at the center of public constitutional debate. We have already explained some of the most critical steps that led the Ecuadorian Constitutional Court to rule against the criminalization of abortion in rape cases and the context in which the presidential veto became the new text of the law.
Moreover, at the moment there are six claims of unconstitutionality at the Court coming from different pro-life and pro-choice social movements, which gives us a chance to briefly analyze the ruling, the complainers’ arguments, and the controversial legal text under the light of the ruling.
One of the most discussed critical points of the law is its object. The final text of the law has as its object to regulate abortion in rape cases “in subjection to human dignity (…) without undermining the constitutional protection of the unborn.”
It is important to consider that in the Ecuadorian legal system there is constitutional protection for the unborn on article 45 of the Ecuadorian Constitution, which claims “the State shall recognize and guarantee life, including care and protection from conception.” It also recognizes in its article 11.7 that human dignity shall be a source of rights that are not explicitly considered in the legal constitutional frame.
The Court in its ruling argued (par. 122) that this constitutional protection is not absolute, according to the Artavia Murillo v. Costa Rica ruling of the Interamerican Court of Human Rights. Also, this protection should not be interpreted alone, because the Constitution has a mechanism called “interdependence of rights” (article 11.6), which means that no constitutional right has a hierarchy or preeminence order above others. In that case, the Court ponders the constitutional protection of the unborn and the rights of rape victims, looking for a “proper balance”.
On this point, there are two main approaches coming from pro-life and pro-choice claims. On one hand, pro-life argue that the interpretation of article 45 by the Court is mistaken because it might go against the literal constitutional disposition. On the other hand, the pro-choice claims argue that the unborn should not be a subject of protection of the law, since it was meant to regulate abortion in rape cases and so to protect rape victims.
From a more technical perspective, there is no evidence that the law’s final text contradicts the constitutional ruling. The parameters of the Court explicitly (par. 195) asked for a regulation that “establish conditions and requirements so that there is an adequate balance between the protection of the unborn and the constitutional rights of women victims of rape.”
In the case the Court decides to rule against the object of the abortion law, it will have not only to interpret the Constitution but also its own words on the constitutional protection of the unborn.
In the following articles, we will review other controversial aspects of the law, while the cases are still analyzed in Court.
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