In June, the lower house of Argentina’s Congress voted to legalise abortion in the country in the first 14 weeks of pregnancy, marking a major step forward for reproductive rights in Latin America.
The bill is awaiting a vote in the Senate to be held on 8 August, but has already been hailed as a milestone in a region that has some of the world’s most stringent abortion laws. This was highlighted in 2016 when the Zika virus and suspected risks to unborn babies prompted calls for the laws to be relaxed. Abortion remains illegal under any circumstances in El Salvador, the Dominican Republic and Nicaragua. Many other countries only permit abortion if the woman’s life is in danger or in the event of rape.
‘Clearly, as the region is predominantly Catholic and the current Pope is an Argentine, the advance in reproductive rights by the legislative power in Argentina is surprising,’ says Isabel Bueno, Co-Chair of the IBA Women Lawyers' Interest Group and partner at Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados in São Paulo.
If approved, Argentina will become the fourth nation in Latin America to decriminalise abortion. This will allow a woman to request an abortion procedure during the first trimester regardless of the reason. Currently, only Cuba, Uruguay, Guyana, Puerto Rico (technically a US commonwealth) and Mexico City’s Federal District allow elective abortions in the region.
Carmen Cecilia Martinez is Regional Manager for Latin America and the Caribbean at the Center for Reproductive Rights (CRR). ‘If this happens, it would be a great decision for the region, considering that Latin American countries have some of the most restrictive reproductive health laws and policies in the world, particularly with regard to abortion,’ she says. ‘In part this stems from not recognising reproductive freedom as a fundamental human right. However, imposing legal restrictions on abortion does not reduce the likelihood that women will seek reproductive health services. Instead, harsh laws compel women to risk their lives and health by seeking out unsafe abortions. In fact, Latin America has the highest proportional number of maternal deaths as a result of unsafe abortions in the world.’
“If this happens, it would be a great decision for the region, considering that Latin American countries have some of the most restrictive reproductive health laws and policies in the world
Carmen Cecilia Martinez
Manager for Latin America and the Caribbean, Center for Reproductive Rights
There are other signs of progress, such as in Chile. Abortion was legalised in the country in September 2017 following a vote by the Constitutional Court, which made it legal to have an abortion during the first 12 weeks of pregnancy if the mother's life is at risk, the foetus will not survive, or in the event of rape.
However, other countries have taken less positive steps. In April, in El Salvador – where women can still be prosecuted and imprisoned for having abortions – the country’s Legislative Assembly failed to hold a vote to reform its outright ban before the new parliament sat on 1 May. The Assembly was due to vote on two proposed bills, which would have given Salvadoran women access to safe and legal abortion services in the event of a risk to the health or life of the mother or in the case of rape and fatal foetal abnormalities.
‘[This] was a major missed opportunity in the advancement of human rights in that country, that also sends a negative signal to the new Assembly and shows that Salvadoran legislators are not committed to protecting the rights and health of women and girls,’ says Martinez.
The Assembly’s inertia was all the more disappointing given recent indications the country was beginning to modify its views on this issue. In early 2018 the country’s Supreme Court commuted the sentences of two Salvadoran women who had previously been convicted of murder and aggravated murder, respectively, after their newborns were found dead shortly after birth. Both women had always claimed their babies were stillborn and had not died as a result of abortion. Amnesty International estimates that at least 23 women remain in prison in El Salvador for pregnancy-related complications linked to the total abortion ban.
As progress on reproductive rights remains mixed in Latin America, the announcement of US Supreme Court Justice Anthony Kennedy’s impending retirement has sparked fears of a rollback of abortion rights in the US. The Justice, who has served on the Court since 1988, was a strong defender of Roe v Wade and cast the tie-breaking vote on challenges to the 1973 Supreme Court ruling that enshrined a woman’s right to abortion in US law.
Professor Suzanne Goldberg from the Center for Gender and Sexuality Law at Columbia Law School says Justice Kennedy’s retirement may sound the death knell for reproductive rights in the US. ‘Justice Kennedy stood as a bulwark against the efforts by some states to dramatically cut back on abortion rights,’ she says.
In the US, the president nominates Supreme Court justices before the Senate confirms their appointment. Goldberg says all the indications so far suggest President Donald Trump’s nominee is likely to challenge Kennedy’s views on abortion. ‘There is significant concern that the President will appoint someone who is committed to undoing what Justice Kennedy has done in the areas of gender and sexuality law and in the areas of LGBT rights and women’s rights.’