The right to abortion in Latin America

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By OMAR G. ENCARNACIÓN*

There is no single path to legalizing abortion for Latin American countries

As Americans contemplate a possible future without the case Roe v. Wade precedent, it is worth looking closely at the recent abortion rights revolution in Latin America. After centuries of living under some of the most draconian abortion laws imaginable – such as denying rape victims the right to terminate their pregnancies and sending women to prison on suspicion of having an abortion rather than a miscarriage – millions of women in Latin America now have access to legal abortion in countries like Argentina , Colombia and Mexico. Such a radical transformation in the abortion landscape in Latin America makes people think what until recently was unthinkable: women from Texas and other states along the US-Mexico border will travel to Mexico to get a legal abortion, rather than otherwise.

There is no single path to legalizing abortion for Latin American countries. In Argentina, which paved the way, the National Congress deliberated on an important abortion law in December 2020. It allows women to terminate a pregnancy during the first 14 weeks. At the time the law was adopted, abortion in Latin America was legal only in the “mini-state” of Mexico City (since 2007) and in small countries with peculiar histories. Cuba legalized the practice in 1965 in the wake of the Cuban Revolution, and Uruguay, a country with a long legacy of social liberalism, did so in 2012.

Shortly after the Argentine law was passed, the change in Mexico and Colombia came through the courts. In Mexico, the Supreme Court decriminalized abortion at the national level in 2021. The Constitutional Court of Colombia voted for abortion in February this year. Then Chile, a famously conservative country (it only legalized divorce in 2004), where a new constitution is expected to legalize abortion later this year.

What enabled this seismic shift in abortion in Latin America is still being debated. But several factors stand out. For starters, legalized abortion is part of a wave of social change sweeping the region. While most Americans consider Latin America a perpetual backwater, the reality couldn't be more different. Several Latin American countries legalized same-sex marriage ahead of the United States, including Argentina in 2010, five years before the US Supreme Court ruled in favor of same-sex marriage.

Argentina also enacted the world's most progressive gender identity law in 2011. It allows anyone to change their sex assigned at birth without undergoing surgery or a diagnosis of gender dysphoria. In 2013, Uruguay became the first country in the world to legalize marijuana. Colombia legalized euthanasia in 2014, ahead of much of the world. Most impressive of all, perhaps, is that as recently as 2015, female presidents have led South America's three major economies – those of Brazil, Argentina and Chile.

Growing secularization and democratization are major trends behind these dramatic changes. Secularization lowered the barrier to social progress by making it easier for politicians to adopt abortion without fear of retaliation from the still powerful Catholic Church. Latin American bishops' threats of excommunication to politicians who openly support abortion and LGBTQ rights often fall on deaf ears these days. For its part, democratization, a process launched by a wave of democratic transitions that began to take root in the 1980s, when the region began to decisively move away from military rule, triggered a transformation of the constitutional landscape of Latin America. Across the region, the transition to democracy has necessitated new constitutions or required serious constitutional overhaul.

Latin America's new or revised constitutions include an expansive menu of individual rights and freedoms, as well as constitutional innovations designed to protect minorities, which explains why the region's courts are among the most receptive in the world to those seeking social rights. In 2019, after the Brazilian Congress dragged its feet on protecting LGBTQI+ people from discrimination, the Brazilian Federal Supreme Court stepped in and declared homophobia a crime akin to racism, sexism, and anti-Semitism.

This intervention was possible due to an unusual feature in the Constitution that Brazil enacted in 1988, which allows the court to intervene whenever it considers that the rights of a vulnerable minority are at risk. Having also intervened on behalf of same-sex marriage, gay adoption and transgender rights, it is not inconceivable that at some point in the future the court would also legalize abortion.

Ultimately, however, the success of the abortion revolution in Latin America depended more on expert and intelligent campaigns than on sociological biases and constitutional advantages. Most suggestive is how progressives and feminists in Latin America talk about abortion; they do so in a way that simultaneously advances the cause of abortion and minimizes the prospect of backsliding. Broadly speaking, American abortion rights activists framed it in terms of a personal choice.

In Latin America, in striking contrast, the framing has been more ambitious and idealistic: as a human rights issue. Abortion activists in Latin America – many of them veterans of the fight for LGBTQI+ rights – have also insisted that legalizing abortion means expanding citizenship. This framework around human rights and citizenship aimed to capitalize on the cultural and political resonance of these universal values ​​across Latin America, a legacy rooted in a long history of denial of basic citizenship rights and human rights to women, indigenous peoples and others. disadvantaged groups. The framework boosted support for abortion in civil society, including organized labor, feminist groups, human rights organizations, and the LGBTQI+ rights movement. It also put the Catholic Church in the very uncomfortable position of opposing human rights progress.

Abortion activists in Latin America have also drawn attention to the socioeconomic consequences of criminalizing abortion, showing that abortion prohibition creates a two-tier system that guarantees wealthy women access to a safe abortion through private doctors and obliges women to poor women carrying an unwanted pregnancy to term or going underground in search of an abortion and being subject to legal proceedings by public authorities.

Indeed, the legal case granting Colombian women the right to abortion argued that abortion restrictions unfairly discriminated against poor women for whom abortion was more difficult and legally dangerous than for well-to-do women. Abortion activists in Latin America have also emphasized the public health costs of criminalizing abortion. A big issue in the Argentine campaign was linking the country's high maternal mortality rate to lack of access to safe abortions.

Abortion rights advocates in Latin America have also made the fight for abortion a fashionable cause – literally and figuratively. Argentina, where the fight for legal abortion lasted for decades, led the way in making green scarves the symbol of the abortion campaign. created the phenomenon known as green tide, or green tide. The link to the women's previous political campaigns was unmistakable. The green scarves had been used in #NiUnaMenos (Nem Uma a Menos), a protest movement against domestic violence that mobilized millions of women in cities in Argentina, Chile and Uruguay.

The scarves were also an important symbol of resistance against the military dictatorship led by the Mothers of Plaza de Mayo, the group of mothers and grandmothers who gained renown by bringing attention to those who disappeared because of their opposition to the military. Leading the green wave were young women, millions of whom proudly displayed a green scarf in the massive abortion rights demonstrations that rocked Latin American cities in the midst of the Covid-19 pandemic.

The high visibility of young women in the fight for abortion was crucial not only in promoting the cause of abortion among the general public. In particular, young women featured prominently in an astute media campaign for the decriminalization of abortion. But equally, if not more, important was the influence of young women in persuading older women to change or alter their views on abortion. A case in point is that of former Argentine President Cristina Fernández de Kirchner. Even though she has fiercely defended same-sex marriage (she signed the bill), she has opposed abortion for much of her political career. But as a senator in the Argentine Congress, a position she has held since leaving the presidency in 2015, she changed her position, citing "the thousands, thousands of young women who have taken to the streets".

It is also vital to note that the experience of Latin American countries serves as a cautionary tale for what the US anti-choice movement may face in the post-election era.Roe. The criminalization of abortion in Latin America has not made it disappear; instead, it forced millions of Latin American women to seek illegal and often unsafe abortions. And it was the macabre stories of some of these women that ended up putting the issue at the forefront of the effort to decriminalize abortion. In Argentina, the fight over the legalization of abortion came to a head when an 11-year-old girl was forced to carry a baby to term. She was the victim of rape by her grandmother's boyfriend. Although the girl was technically eligible for an abortion under the then very restrictive abortion laws, anti-abortion doctors, institutions and government officials made it virtually impossible for her to terminate her pregnancy.

The new abortion laws in Argentina, Mexico, and Colombia are vastly more liberal than many abortion rights activists ever thought possible. For years, activists in Latin America have sought to expand abortion rights across the region incrementally, fighting to allow abortion in cases where the pregnant woman's health was at risk or to overturn laws that prosecuted women who had suffered an abortion. But they have always met with strong opposition from conservative lawmakers and the Catholic Church, and have had little success.

Fueled by this opposition, the popular movement in favor of legalizing abortion that has emerged in recent years has managed to greatly advance the goals. The recent court decree that legalized abortion in Colombia authorized abortion up to the 24th week of pregnancy, making the country one of the most liberal in the world with regard to abortion. Sweden, which has the most liberal abortion laws in the European Union, allows abortion only up to the 18th week (with some exceptions for miscarriages later in pregnancy). The lesson for the American anti-abortion movement here is clear enough: When it comes to criminalizing abortion, be careful what you wish for.

*Omar G. Encarnación is professor of political science at Bard College (USA). Author, among other books, of The case for gay reparations (Oxford University Press).

Translation: Fernando Lima das Neves.

Originally published in the magazine The Nation.

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