Fighting for Abortion Rights in Latin America

Social Movements, State Allies and Institutions

Cora Fernández Anderson

• Publisher: Routledge
• Year: 2020
• Print ISBN: 9780367355951
• eBook ISBN: 9781000071429
• Topic: Politics & International Relations
• Subtopic: Global Politics
• Index: Politics & International Relations

Although they share similar socio-economic and cultural characteristics as well as their recent political histories, Argentina, Chile and Uruguay differ radically in their abortion policies.

In this book, Cora Fernández Anderson examines the role social movements play in abortion reform to show how different interaction patterns with state actors have led to three different policy outcomes: comprehensive abortion reform in Uruguay; moderate abortion reform in Chile; and no legal abortion reform in Argentina. Synthesizing a broad range of literature and drawing on in-depth field and archival research, she analyzes the strength of the campaigns for abortion reform, their relationships with leftist parties in power and the context of Church–state relations to explain this diverging trajectory in policy reform.

A masterly analysis of how social movements, the power of institutions and Executive preferences have strong explanatory power, Fighting for Abortion Rights in Latin America is a perfect supplement for classes on gender and global politics.

1

ABORTION IN LATIN AMERICA

In 1999, a 14-year-old girl was denied an abortion after being raped and becoming pregnant in Mexico – despite abortion being legal under these circumstances in the state of Baja California. The director of the General Hospital in Mexicali told her (and her mother) that having an abortion could put her life at risk. As if that weren’t enough, the general prosecutor took her to talk to a local priest, who reminded her that abortion spelled an immediate excommunication from the Church. Anti-choice activists visited her in the hospital and forced her to watch the documentary “Silent Scream.” The girl decided not to have an abortion and in 2000 gave birth to a baby boy. The case reached the Inter-American Commission on Human Rights, which in 2006 forced Mexico to pay reparations to the girl and to commit to change the legislation on abortion to prevent this from happening again (Winocour 2006).

In June 2007, a 35-year-old woman and mother of four, working as a maid for one dollar an hour, died of uterine cancer in Colombia. Two years earlier she had been denied treatment because of being pregnant with her fourth daughter. The total abortion ban in place at the time in the country prevented her from saving her life. Her case was influential in the 2006 Supreme Court of Colombia ruling that lifted the total ban and legalized abortion when the life of the woman is in danger, the fetus has no chances of living outside the womb or when the pregnancy results from rape and/or incest. However, the court ruling came too late for her (Gould 2008).

In 2013, a 22-year-old woman and mother of a toddler suffering from lupus and kidney failure and carrying an anencephalic fetus with no chances of surviving was denied an abortion in El Salvador due to the total ban in place in the country since 1998. Due to national and international outcry the case reached the Inter-American Commission on Human Rights, which forced the Salvadoran government to interrupt the pregnancy. On October 9, 2013, doctors performed a cesarean section at 26 weeks. The baby lived only five hours.

Abortion laws have historically been highly restrictive in Latin America,¹ making the practice of abortion one of the main causes of maternal death in these countries. While these regulations have long been eliminated in the Northern countries, women in Latin America are still seeing their autonomy limited by them. Why has it taken so long to address this situation in the region?

This chapter provides a context for the ensuing political analysis of abortion in Latin America. The first section describes the status of abortion laws in the region and evaluates their rationale and consequences. It also explains the reasons why it has been so hard to reform these laws and grant Latin American women the right to an abortion. The second section explores the status of abortion and the history of abortion laws in the three countries – Uruguay, Chile and Argentina – offering a general introduction to the empirical chapters and the comparative analysis developed in the book.

Legal Status of Abortion in Latin America: Origins and Consequences

The laws regulating abortion in Latin America are a legacy of the Spanish and Portuguese Empires. Inspired by canon law – the system of laws made and enforced by the Catholic Church – Spain formalized the prohibition of abortion as early as 1263 and Portugal during the 1600s. In line with laws in continental Europe, abortion was punishable by death in the Spanish and Portuguese Empires in the Americas. After independence, at the end of the nineteenth century, most Latin American countries drafted civil and criminal codes. As it happened in all the realms of state-building, indigenous practices and regulations around abortion did not inform the drafting of the codes at all. Instead jurists used continental European law, particularly the Napoleonic Code, as legal inspiration. Abortions were thus criminalized and punished under all circumstances. Exceptions to this total ban only began to appear in the twentieth century.

Today, Latin America is still noted for the restrictiveness of its abortion laws. The only places in the region that permit abortion on request are Cuba (since 1965), Mexico City (since 2007)² Uruguay (since 2012) and the Mexican state of Oaxaca (since 2019). Four countries restrict abortion under all circumstances, even if the life of the woman is at risk: Honduras (since 1997), El Salvador (since 1998), Nicaragua (since 2006) and the Dominican Republic (since 2009). Chile was in this category from 1989 until the 2017 reform that introduced some exceptions to the general ban. In between these two extremes are most of the rest of the countries, which, like Argentina, allow abortion only under exceptional circumstances. Some of the most common situations include: threat to the woman’s life and/or health, rape, incest and fetal malformations incompatible with life outside the womb.

However, even in the few circumstances in which abortion is legal, women often have difficulty accessing the practice, given the presence of multiple gatekeepers in the health and judicial systems. Whether due to their own anti-abortion stances, their lack of knowledge of state regulations or their fear of being penalized, doctors many times refuse to provide an abortion and ask permission from judges and government authorities before providing one – even when the case clearly falls within the parameters of the law (López Gómez 2015). Judges many times disregard the letter of the law and deny authorizations, and government officials such as ministers of the family interfere in these judicial instances in defense of the “unborn child,” delaying the provision of an abortion even more. As a consequence, even in the cases where legal exceptions exist, abortions are hard to access and the laws are ignored. In the last decades, countries have been taken to international courts and held accountable for these violations. In the cases noted at the beginning of this chapter, for example, the Inter-American Commission on Human Rights ruled against Mexico and El Salvador for denying the right to abortion in cases of rape and an anencephalic fetus.³ The Commission is currently hearing the case of a 16-year-old girl from the Dominican Republic diagnosed with leukemia who died in 2012 after being denied treatment for being pregnant.

Despite the legal restrictions present in Latin America, the Guttmacher Institute estimates that 6.5 million abortions occur annually in the region,⁴ a trend that has risen from 4.4 million during 1990–1994. They estimated the percentage of pregnancies that ended in abortion to have increased from 23 to 32% during that same five-year period. But many of these were unsafe procedures and as a consequence, in 2014, 900 women died from illegal abortions (10% of all maternal deaths) and 760,000 had to be treated for complications. As is always the case, poor and rural women were the most likely to suffer these consequences (Guttmacher Institute 2018).

In the 1990s, women in Brazil found that the drug Misoprostol, originally prescribed for gastric ulcers, was an effective abortifacient. Its growing use has gradually diminished the risk to the health and life of women having illegal abortions (Guttmacher Institute 2018). Abortions with Misoprostol, while still illegal under these countries’ laws, have become medically safe if the accurate guidelines are followed. Some government and civil society groups throughout the region have begun to recommend the use of Misoprostol to reduce maternal mortality and morbidity for abortion in legally restrictive contexts. Governments have launched harm reduction strategies in the form of pre- and post-abortion counseling (Hyman et. al 2013; Ramos et al. 2014). The program Iniciativas Sanitarias in Uruguay, implemented before the 2012 legalization of abortion, was one of the first and the most successful of these initiatives (Briozzo 2002). In addition, networks of feminist activists began to provide information about the use of Misoprostol through abortion hotlines and abortion doula services (Drovetta 2015; McReynolds 2017; Grosso and Zurbriggen 2016; Zurbriggen et al. 2018). The Argentine group Socorristas has helped 23,315 women interrupt their unwanted pregnancies with medication throughout a five-year period (Socorristas 2019). In situations in which information about Misoprostol is increasingly available, the main problem has been accessing the medication to practice a self-induced abortion. Whether prohibited as an abortifacient, sold at unaffordable prices or having had its purchase restricted by additional requirements, the drug has remained available through a black market, though it is not always clear whether the drug purchased is real or of dubious quality (Hyman et al. 2013; Tavara Orozco et al. 2009).

Abortion laws usually punish both the provider and women with penalties that range from three months to ten years. In general, however, these restrictive laws are rarely enforced. The rates of those prosecuted for abortion are very low; even fewer are actually convicted. A 2013 report by IPAS found that in Argentina, where it is estimated women have approximately 450,000 abortions annually, there were only 417 cases of women and doctors arrested for the “crime of abortion” between 1990 and 2008 (Kane et al. 2013).

However, when these convictions happen, they disproportionally affect poor women who have received emergency care in public hospitals, since it is usually public hospital personnel who report them to the police (Oberman 2018; Kane et al. 2013). One country, El Salvador, is an outlier. Since the country’s total ban law passed in 1998, courts have been using the criminal offense of homicide for cases of abortion, convicting women to sentences of up to 40 years (Oberman 2018).

While only few people who have abortions are convicted, all of them suffer other consequences of the criminalization: When deciding to end an unwanted pregnancy they put their lives in the hands of clandestine practices they know nothing about. If unexpected health problems arise, it is impossible to hold those responsible accountable. More specifically, when excessive pain or bleeding occur, women have no choice but to rush to emergency rooms where many times they are humiliated and mistreated. There have been reports of doctors finishing incomplete abortions without anesthesia and leaving women last in line to be treated as a form of punishment for interrupting their pregnancies (Checa 2006; Steele and Chiarotti 2004). And those are the lucky ones who even get help. Many others, afraid of being reported to the police or being shamed by their families, refuse to seek medical attention, and die.

In light of this reality, reproductive rights experts have insisted that the criminalization of abortion is a direct attack on women’s reproductive rights, as well as their basic right to life, personal integrity, access to reproductive health, intimacy, dignity, personal freedom and the right to live free of violence and discrimination (ADC-GIRE 2012; Chiarotti 2006). This has also been stated numerous times by international institutions such as the Inter-American Commission on Human Rights,⁵ the UN Committee on Economic, Social and Cultural Rights and the Committee for the Elimination of Discrimination Against Women (CEDAW).⁶

The Resilience of Abortion Restrictions

Scholars tend to classify the abortion debate under the politics of morality: A field defined by policies that deal with life-and-death decisions, sexuality and self-determination (Mooney 1999; Meier 1999; Mourao Permoser 2019). Morality issues are perceived and usually framed as a zero-sum game in which the values of a specified group get legitimated at the expense of others, deeming the values unamenable to compromise (Mucciaroni 2011). These morality policies most of the time deal with values and behaviors that clash with religious doctrine and as such are considered a sin by believers (Mourao Permoser 2019). However, this particular dynamic has been more persistent in some regions and countries – i.e., Latin America – than in others. Why have Latin American regulations on abortion remained so restrictive while other regions of the world have been able to arrive at new consensus around the legalization of the practice?

The role of the Catholic Church (and more recently Evangelical churches in certain countries) is typically cited as the main culprit, given its deep-seated and wide-ranging role influencing both societal values and political elites. However, this obstacle has been overcome, with respect to other issues that also transgress key religious doctrine. Issues such as divorce, the legalization of the morning-after pill, sex education programs and same-sex marriage reforms were codified into law in many countries in the region, particularly in the cases studied here. Is there something fundamentally different about the question of abortion? Why has it been so much more difficult for abortion advocates to obtain similar successful results? Why are the conservative forces behind the politics of morality stronger in this particular case?

This section will discuss the role of the Catholic and Evangelical churches in the issue of abortion and explores the literature of gender policy to determine how abortion differs or not from other issues in this field. A comparison with reforms to family law and same-sex marriage suggests some reasons why abortion restrictions have been more resistant to change in Latin America. This second section discusses the resilience of abortion restrictions through the perception of political costs around this practice and how they are affected by the timing of the emergence of the women’s movement, the...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of illustrations
• Acknowledgments
• Introduction
• 1 Abortion in Latin America
• 2 The Case of Uruguay: Working Together towards Comprehensive Abortion Reform
• 3 The Case of Chile: Co-Opting the Demand for Abortion Reform
• 4 The Case of Argentina: Political Indifference, Stasis and Resilience
• 5 Conclusion: Abortion Reform in the Southern Cone – Beyond the Pink Tide
• Index