Gleaning Hope From Latin America’s Abortion Rights Revolution

Gleaning Hope From Latin America’s Abortion Rights Revolution

Gleaning Hope From Latin America’s Abortion Rights Revolution

After centuries of living under some of the most draconian abortion laws imaginable, millions of women in Latin America now have access to legal abortion. How did they do it?

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As Americans contemplate a possible future without Roe v. Wade, it is worth taking a close look 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 victims of rape the right to terminate a pregnancy and sending women to prison under the suspicion that they had 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 Latin America’s abortion landscape has people thinking what until recently was unthinkable: Women from Texas and other states along the US-Mexico border will be traveling to Mexico to have a legal abortion, rather than the other way around.

There’s no single trajectory for how Latin American countries came to legalize abortion. In Argentina, which paved the way, the National Congress legislated a landmark abortion law in December 2020. It allows women to terminate a pregnancy during the first 14 weeks. At the time when 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. Soon after Argentina’s law was passed, change in Mexico and Colombia came via the courts. In Mexico, the country’s Supreme Court decriminalized abortion nationwide in 2021. Colombia’s Constitutional Court voted in favor of abortion in February of this year. Next in line is Chile, a famously conservative country (it only legalized divorce in 2004), where a new constitution is set to legalize abortion later this year.

What allowed for this seismic change on 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 that is sweeping through the region. While most Americans regard Latin America as a perpetual backwater, the reality could not 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 the gender 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 striking of all, perhaps, is that as recently as 2015 women presidents led South America’s three leading economies—those of Brazil, Argentina and Chile.

Increasing secularization and democratization are the bigger trends behind these dramatic changes. Secularization has lowered the barrier to social progress by making it easier for politicians to embrace abortion without fearing backlash from the still-powerful Catholic Church. Threats of excommunication by Latin American bishops for politicians that openly support abortion and LGBTQ rights generally fall on deaf ears nowadays. 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 Latin America’s constitutional landscape. Across the region, the transition to democracy made new constitutions necessary or demanded a serious constitutional revamping.

Latin America’s new or revamped constitutions include an expansive menu of individual rights and freedoms, as well as constitutional innovations intended 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 in protecting LGBTQ people against discrimination, the Brazilian Federal Supreme Court stepped in and declared homophobia a crime akin to racism, sexism, and anti-Semitism. This intervention was possible because of an unusual feature in the constitution that Brazil enacted in 1988 that allows the court to intervene whenever it deems 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 will also legalize abortion.

Ultimately, however, the success of Latin America’s abortion revolution hinged more on expert and smart campaigning than on sociological trends 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 for abortion while minimizing the prospect for backlash. Broadly speaking, American abortion rights activists have framed abortion in terms of a personal choice. In Latin America, in striking contrast, the framing has been more ambitious and idealistic: as a human rights matter. Abortion activists in Latin America—many of them veterans of the struggle for LGBTQ rights—have also insisted that legalizing abortion means expanding citizenship. This framing 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 denying basic citizenship rights and human rights to women, Indigenous peoples, and other disadvantaged groups. The framing boosted support for abortion across civil society, including organized labor, feminist groups, human rights organizations, and the LGBTQ rights movement. It also put the Catholic Church in the very uncomfortable spot of standing against human rights progress.

Latin American abortion activists have also drawn attention to the socioeconomic consequences of criminalizing abortion by showing that prohibiting abortion creates a two-tier system granting wealthy women access to a safe abortion through private doctors and forcing poor women to carry an unwanted pregnancy to term or go underground to seek an abortion and be subject to legal prosecution by public authorities. Indeed, the legal case that won Colombian women the right to abortion argued that the restrictions on abortion unfairly discriminated against poor women for whom getting an abortion was harder and legally more perilous than for well-off 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 rate of maternal mortality to the lack of access to safe abortions.

Abortion rights advocates in Latin America also have made the fight for abortion a fashionable cause—literally and figuratively. Argentina, where the fight for legalized abortion was a decades-long struggle, led the way by making green scarves the symbol of the campaign for abortion. It created the phenomenon known as marea verde, or green tide. The connection to previous political campaigns by women was unmistakable. Green scarves had been employed in #NiUnaMenos (Not One Less), a protest movement against domestic violence that mobilized millions of women in cities in Argentina, Chile, and Uruguay. Scarves were also an important symbol of the resistance against military dictatorship led by the Mothers of the Plaza de Mayo, the group of mothers and grandmothers who gained renown by drawing attention to those who disappeared because of their opposition to the military. Fronting the green wave were young women, millions of whom proudly displayed a green scarf in the massive  demonstrations or abortion rights that rocked Latin American cities in the midst of the Covid-19 pandemic.

The high visibility of young women in the struggle for abortion was crucial not only in promoting the cause for abortion among the general public. In particular, young women featured prominently in a savvy social media campaign in favor of decriminalizing abortion. But just as important, if not more, was the influence of young women in persuading older women to change or alter their views on abortion. A case in point is former Argentine president Cristina Fernández de Kirchner. Even as she fiercely championed same-sex marriage (she signed it into law), she 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 shifted positions, citing “the thousands, thousands of young women who took to the streets.”

It is also vital to note that the experience of Latin America countries serves as a cautionary tale for what America’s anti-choice movement may be facing in the post-Roe era. Criminalizing abortion in Latin America did not make it go away; instead, it forced millions of Latin American women to seek illegal and often unsafe abortions. And it was the gruesome tales of some of these women that eventually pushed the issue to the forefront in the effort to decriminalize abortion. In Argentina, the fight over the legalization of abortion was brought into sharp focus when an 11-year-old girl was forced to carry a baby to term. She was the victim of a rape by her grandmother’s boyfriend. Although the girl technically qualified for an abortion under the then very restrictive abortion laws, anti-abortion doctors, institutions, and government officials made it all but impossible for her to terminate the pregnancy.

The new abortion laws in Argentina, Mexico, and Colombia are vastly more liberal than what many abortion rights activists ever thought possible. For years, activists in Latin America sought to expand abortion rights across the region in an incremental fashion, fighting to allow abortion in cases where the health of the pregnant woman was at risk or to overturn laws that prosecuted the women who had undergone an abortion. But they always ran into stiff opposition from conservative legislators and the Catholic Church, and saw little success. Fueled by this opposition, the popular movement in favor of legalizing abortion that emerged in recent years succeeded in greatly moving the goalposts. The recent court decree that legalized abortion in Colombia authorized abortion through the 24th week of pregnancy, making the country one of the world’s most liberal when it comes to abortion. Sweden, which has the European Union’s most liberal abortion laws, allows abortion only until the 18th week (with certain exceptions for abortions later in pregnancy). The lesson for the American anti-choice movement here is quite clear: When it comes to criminalizing abortion, be careful what you wish for.

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