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Latin America's Abortion Battles

Advocates for women's rights sense progress in the ongoing battle for better reproductive healthcare services.

It was one of the uglier moments in Latin America’s increasingly heated debate over reproductive rights and abortion. Argentina’s minister of health, Ginés González García, went on record in February to state a few compelling facts and hazard some conclusions. Estimating that there were half a million abortions annually in Argentina, González suggested that decriminalizing the procedure could reduce the level of maternal mortality. Because abortion in Argentina is illegal in almost all circumstances, it is generally unsafe. González also affirmed that condom distribution to the young was an effective means of preventing HIV/AIDS.

From a health perspective, his comments were innocuous. But as a political matter, they were anything but. The societal debate over abortion and, more broadly, sexuality and reproductive freedom, has long been simmering in Argentina. Last year, when the government named a woman justice to the Supreme Court who publicly supported decriminalizing abortion, religious and antichoice groups were enraged. To appoint to the court an “abortionist,” as they called her, was a worrying signal, one hinting at possible policy changes to come.

And so the backlash against González’s statements was immediate. Within days, Bishop Antonio Baseotto, a hard-line army prelate, had sent González a letter that accused him of justifying murder by encouraging abortion. Quoting a passage from the bible, the letter suggested that González should have a millstone tied to his neck and “be cast into the sea.”

The Baseotto letter would have been threatening and offensive in any context, but Argentina’s tragic history made it worse. During the country’s 1976-83 military dictatorship, some 1,500 to 2,000 perceived subversives were killed by being thrown from airplanes into the Atlantic. A navy officer responsible for some of the murders later said that a Catholic chaplain had assured him, after hearing his confession, that it was “a Christian form of death.” And in Argentina, unlike in several other Latin American countries, the church hierarchy was largely silent in the face of military abuses.

Baseotto’s letter and the public outcry that followed threatened to overshadow the question that sparked it: the possibility of decriminalizing abortion. But the emotion that the controversy generated was not unprecedented. Clashes over reproductive rights have been frequent, in Argentina and other countries in the region, and arguably more acrimonious than ever before. They typically pit hard-line religious leaders and militant antichoice groups against public health authorities, feminist activists and progressive legislators. And all over Latin America, the public is following these debates closely.

Bishop Baseotto’s reaction was, admittedly, more exaggerated than the norm. But the church hierarchy, bitterly opposed to possible changes in the region’s restrictive abortion laws, has been quick to pull out its biggest guns whenever the subject of abortion comes up for debate. From Argentina to Colombia, Bolivia to Nicaragua, health officials, judges, legislators and others responsible for abortion and contraception policies have risked expulsion from the church. The pressures have not been subtle. “While we were debating the law [on reproductive health],” said Alicia Tate, a lawmaker from Argentina’s Santa Fe province, “all the representatives received a letter from the archbishop threatening us with excommunication.”

Church authorities deem abortion, contraception and other sex- and reproduction-related matters to be religious issues meriting a doctrinal response. Their approach has faced increasing resistance, however, by feminists and others who recognize that control over maternity, sexuality and reproduction is crucial to women’s autonomy. And these groups know that barriers to legal abortion, in particular, take a devastating toll on women’s health and lives.

As it is now being fought, much of the battle is over conceptual understandings. What is at issue is whether abortion should be understood primarily as a public health concern, a religious question, a women’s rights issue or a matter for criminal law. How the debate is framed helps determine, to a meaningful degree, how the public responds to it.

Legalization vs. Decriminalization

Millions of abortions are performed in Latin America each year, most of them in unsafe and clandestine conditions. Abortions are carried out surreptitiously—sometimes by the pregnant woman herself—because they are illegal.

“You get overwhelmed by desperation,” an Argentine mother of ten explained. “You seek all the ways out, pills, anything. But if there is no way out, then you take a knife or a knitting needle.”

Another Argentine woman whose husband was sexually violent described having five abortions. “The first time, I did it with pills. I don’t know how I didn’t die…. The second time I was afraid and I went to a private clinic…. The other times I did it with pills…. I ended up hospitalized with a very low blood count.” Because of such practices, according to the Center for Reproductive Rights, roughly
6,000 women die every year from abortion-related complications in Latin America and the Caribbean.

Although only Chile, El Salvador and the Dominican Republic impose criminal penalties for abortion in all circumstances, nearly every other country in the region has extremely restrictive abortion laws. Most countries’ penal laws do, however, include exceptions permitting abortion in certain narrow circumstances, such as where the life or health of the woman is in danger, or where the pregnancy is the result of rape or incest. Cuba, the regional anomaly, has made elective abortion available since the mid-1960s.

There is little societal support for abortion generally in Latin America, but much greater public willingness to permit it under specific conditions. Recent public opinion surveys of Catholics in Bolivia, Colombia and Mexico (countries in which some 90 percent or more of the population is Catholic) have found that a majority in all three countries believe that abortion should be allowed in at least some circumstances. A 2001 poll in Chile, similarly, found that most Chileans thought that the country should establish certain exceptions to its comprehensive ban on abortion.

In the United States, everyone is familiar with the divide between “prochoice” vs. “prolife” advocates, and how a group’s wording preferences reflect its substantive views. In Latin America, currently, the split is between those who oppose the “legalization” of abortion and those who support its “decriminalization.” While only a relatively small minority of voters is prochoice in the sense of believing that abortion should be freely available, voters in many countries are questioning whether a punitive criminal law approach to the problem is appropriate.

While legalizing abortion smacks of condoning the practice, decriminalizing it means taking it out of the criminal justice realm. The difference between the two views is largely rhetorical, without practical implications, but it resonates with much of the public. “There’s a stigma to the word legalization,” said
Marianne Mollman, a women’s rights researcher at Human Rights Watch, “so policy-makers in Latin America are far more comfortable speaking about decriminalization when they push to reform restrictive laws.”

Brazil Leads the Way …

The decriminalization movement nearly had a landmark victory in Uruguay last year. A reproductive health law that would have permitted abortion at the request of the pregnant woman was passed by Uruguay’s House of Representatives, but lost in the Senate by a mere four votes. At present, the issue is perhaps most prominent in Brazil, where complications stemming from clandestine abortions are the fourth leading cause of maternal mortality. Under the government of left-leaning President Luis Inacio Lula da Silva, the country has been making a series of hard-fought advances for reproductive freedom.

Under Brazil’s 1940 penal code, abortion is only permitted when it is necessary to save a woman’s life or where the pregnancy is the product of rape or incest. In July 2004, however, a justice on the Supreme Federal Tribunal ruled that women with anencephalic fetuses also had the right to terminate their pregnancies. The ruling was revoked a few months later by the full court on procedural grounds, arguably (at least in the view of many Brazilian commentators) due to pressure from the church hierarchy.

“In a democratic state, a secular state, religious beliefs and dogmas of faith shouldn’t take precedence over legal interpretation,” said Luís Roberto Barroso, one of the lawyers litigating the case. “In cases of anencephalia, the physical integrity of the woman is violated because her body is being transformed unnecessarily, given that the anencephalic fetus has no possibility of surviving outside the uterus.”

Barroso’s arguments seemed to sway the court when it revisited the issue this past April. The Supreme Federal Tribunal, voting 7-4, denied a federal prosecutor’s motion to dismiss the case and promised a full judgment on the merits later in the year. Although the ruling was not of great significance in terms of the numbers of women it would directly impact, it was seen as an important defeat for the hierarchy of the Catholic church who had pressed strongly for the case’s dismissal. (Headlines in the Folha de São Paulo, Brazil’s leading newspaper, said: “SFT defies church and decides to rule on anencephalic abortion.”) The court decision was also seen as an indicator of increasingly tolerant judicial views on these issues.

In another move toward liberalization, the government recently changed the regulations implementing Brazil’s legal rules on abortion. Whereas in the past women had to file a police report or obtain a judicial order to have access to abortion in cases of rape, now they need only inform the hospital conducting the procedure that the pregnancy is the result of rape. The new approach was initiated as part of a National Policy for Sexual and Reproductive Rights that seeks to reduce maternal mortality by 75 percent over the coming decade.

Announced in March, the new health regulations were immediately criticized by the Catholic hierarchy. The president of the Brazilian Episcopal Conference, Cardinal Geraldo Majella, accused the government of taking measures “against life.”

Yet the biggest battles over abortion in Brazil are still to come. The most ambitious of the Lula government’s proposals— and the one whose possibilities of success are most uncertain—is a study of decriminalization. The government has set up an 18-member tripartite commission to draft abortion reform legislation, which includes legislators, government officials and civil society representatives. The women’s movement secured four of the six civil society spaces on the commission, while a fifth went to a representative of a Brazilian gynecological association. Left out of the commission was any representative from the Catholic hierarchy. The commission began work in April and in late July its draft recommendations were released to the press. According to the Folha de São Paulo, the commission’s key recommendation was that abortion be decriminalized when performed prior to the 12th week of pregnancy. The draft reform bill is supposed to go to the legislature in August.

“I’m against abortion,” said Serys Slhessarenko, a Brazilian senator on the commission, “but I’m totally in favor of its decriminalization and of providing adequate services to women who need to undergo it.” Slhessarenko explained that decriminalizing abortion is the only way to stop women from dying from unsafe abortions.

…Some Others Follow

There have also been encouraging recent developments in Argentina, Venezuela and Colombia. In Mexico, too, where the situation is complicated by a federal system that puts the regulation of abortion in the hands of state governments, certain states have passed relatively progressive laws. Local authorities in Mexico City (which has quasi-state status), for example, amended the penal code in 2000 to liberalize rules for obtaining an abortion when the woman’s health is at risk or when fetal defects exist. The amendment also reduced maximum sentences for the crime of abortion and established procedures for obtaining an abortion in cases of rape. In the Yucatan, an even more unusual case, abortion is allowed for “economic reasons” if the woman already has three children. (It is unclear, however, to what extent this rule is actually applied.)

Venezuela, another country with a leftist government in place, has some of the most stringent abortion restrictions in the region. Under the penal code, abortion is only allowed when the pregnant woman’s life is at risk. A reform initiated in June by President Hugo Chávez’s congressional supporters would decriminalize abortion in cases of rape, incest and genetic malformation of the fetus.

“Thousands of women are calling for it,” said Iris Varela, a member of Congress who is pushing the reform. “We can’t criminally sanction a woman who decides to end her pregnancy when she was raped or when it’s the product of incest. We know this is going to generate a huge controversy, but we’re ready to fight and we won’t fall victim to manipulations.”

Because President Chávez enjoys a congressional majority, the likelihood of the reform’s passage is high. Venezuelan church leaders, already angry with Chávez for other reasons, are incensed. In a public statement, the Venezuelan Episcopal Conference warned that abortion is “an ecclesiastic crime punished by excommunication.” It continued: “Rape and incest are crimes committed by a third party, so that the perpetrator should be punished, not an innocent and defenseless being like the fetus, which is already a human life.”

Argentina, which has a moderately left-leaning government and somewhat less restrictive abortion regulations, has no legal reforms in the works, but it has seen movement toward improving postabortion care. A recent Human Rights Watch investigation found that some women in Argentina received inhumane and grossly inadequate medical treatment for complications resulting from unsafe abortions. A social worker from Santa Fe Province told Human Rights Watch, for example: “A woman went to the hospital in a very bad state with an abortion and she was infected and hemorrhaging. A doctor started to examine her [but when he realized she had had an abortion] he threw down his instruments on the floor. He said: ‘This is an abortion, you go ahead and die!’”

Over the past year, the Argentine government had shown a commitment to reforming such practices. In October 2004, for example, the health ministries from all the Argentine provinces committed to reducing maternal mortality by, among other measures, ensuring women access to humane, fast and effective postabortion care without discrimination. In May, moreover, the national health ministry promised to strengthen this agreement by publishing technical recommendations for how public health providers can improve postabortion care.

And in Colombia, in one of the region’s most closely-watched developments, lawyer Mónica del Pilar Roa López has asked the country’s Constitutional Court to strike down provisions of the country’s penal code that bar abortion in all circumstances. Although her legal arguments are different—based more on the rights to health, life and nondiscrimination than on the right to privacy—the analogy with Roe v. Wade is inescapable.

Turning the Clock Back

The news isn’t all good. In Central America and the Caribbean, notably, the debate on reproductive rights and abortion has made little progress. And in the past decade some countries have even taken steps backward.

El Salvador, which in 1973 had decriminalized abortion in cases of rape, risk of maternal death and severe fetal defects, amended its penal code in 1997 to ban abortion in all circumstances. In 1999, the country’s constitution was changed to protect the right to life from the moment of conception. The Center for Reproductive Rights has reported that since the new law came into effect dozens of women have been criminally prosecuted for abortion, most of them young, poor and uneducated. The rightwing party in power in El Salvador since the 1990s, supported by the church hierarchy, has rejected any possibility of abortion reform.

But even if not all changes are for the better, the increasing public attention to issues of reproductive health and abortion in Latin America is encouraging overall. Because the underlying facts are compelling, the need for reform is becoming clear. Many people who vigorously oppose abortion are recognizing that an approach based on criminal sanctions is neither effective, nor safe, nor fair.

The church hierarchy can continue to fulminate against any reform. But Latin America’s experience proves that making abortion illegal does not stop it from happening, it just stops it from happening safely.

JONANNE MARNIER is a New York-based human rights lawyer and a regular columnist for Findlaw’s Writ (www.findlaw.com).

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