The Charter vs the Pill

Over at The Court, there’s a lengthy discussion of a 5-4 decision of Chile’s Constitutional Court striking down a decree requiring the contraceptive pill to be distributed through the public health system as incompatible with that country’s right to life. The majority held that: (a) life begins at conception; (b) the right to life is absolute; (c) it’s possible that the contraceptive pill stops fertilised gametes from implanating.

The Charter permits (but does not require) a consideration of the decisions of Chile’s (and everyone else’s) courts on human rights issues in determining the meaning of Victorian statutes:

32(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

So, the Chilean decision could be considered when interpreting Charter s. 9:

Every person has the right to life and has the right not to be arbitrarily deprived of life.

This provision differs from the equivalent in the ACT HRA in not specifying that life begins at birth. (The Chilean provision specifies that the right to life includes those ‘about to be born’!)

However, even if Charter s. 9 is interpreted as protecting life from conception, it’s unlikely that the remainder of the Chilean decision will be followed here. First, all Victorian rights are subject to reasonable limits by other laws, including other rights like equality and privacy. Second, according to The Court, the factual findings about the Pill’s operation are debatable (although, as I understand it, there is a surprising lack of certainty about how the Pill works.) Third, the public funding of contraceptives is beyond Victoria’s reach; I’m not too certain about who exactly regulates the distribution of contraceptives.

Finally, there’s the Charter’s savings provision:

48 Nothing in this Charter affects any law applicable to abortion or child destruction, whether before or after the commencement of Part 2.

But does this cover gametes and their implementation? The drafters clearly didn’t have this quite extreme approach to the right to life in mind! They need to catch up on their Monty Python

2 thoughts on “The Charter vs the Pill

  1. Does the Chilean decision have any effect on the use of the Pill generally in Chile? That is, if the government can’t distribute it via the public health system as it violates the right to life does this also stop pharmacists selling it?

  2. That’s a good question and I don’t know the answer. It depends on two things: (a) Does the Chilean Constitution bind individuals in their dealings with eachother (like the SA constitution does?) (b) Does the Chilean right to life include a positive duty on the state to act to prevent anyone’s life being taken? In Victoria, such findings could only be made if either (a) there’s a statute that could be re-interpreted as barring the sale of anything that takes life; or (b) a public authority has the power to stop the distribution of the Pill and no other law makes it reasonable for the authority not to.

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