In the last days of 2020, Latin America and the international community at large witnessed a historic moment for women’s rights as Argentina passed a landmark law to decriminalise abortion. With 38 votes in favour, 29 against, and one abstention, the Senate approved a law that made Argentina the largest Latin American country to legalise abortion. Previously, the procedure was only permitted in cases of rape and where the mother’s life was at risk. Decriminalisation means that there is no more ban on abortion and women can carry out elective abortions up to 14 weeks of pregnancy. This represents a significant advance on women’s sexual and reproductive health and rights, including ‘the capability to reproduce and the freedom to decide if, when and how often to do so’, and ultimately contributes to eliminating discrimination against women (see the relevant CEDAW General Comment here). As UN rights experts have stressed in the past, ‘the right of a woman or girl to make autonomous decisions about her pregnancy is at the very core of her fundamental right to equality, privacy, physical and mental integrity and is a precondition for the enjoyment of other rights’.
In contrast to previous attempts to legalise abortion in the country – the first one dating from 2003 – this initiative was sponsored by Argentina’s left-wing President Alberto Fernández. The President framed the issue as a question of social justice since poorer women were often forced to revert to clandestine abortions, thereby endangering their health and lives, while more affluent women were able to afford to undergo the procedure in professional medical settings abroad. As such, the discussion centred around ensuring that all women could have access to legal and safe abortions. Indeed, nearly half a million abortions are estimated to be conducted in Argentina per year and the majority of complications are suffered by women from vulnerable and poor communities, resulting in 39,000 hospitalisations a year. The UN Committee on the Elimination of Discrimination against Women had already noted its concern ‘about the stagnation of the maternal mortality rate, attributable in part to unsafe abortions’.
Legalising abortion is often cited as an important step to address a number of these aforementioned issues, together with other measures related to education, preventive measures and access to safe procedures. As such, the decriminalisation of abortion in Argentina has been discussed by the UN on several occasions, which may have potentially contributed to the important step taken by Argentina’s government. During the State’s latest Universal Periodic Review, several States including Norway, Iceland, Switzerland, and Germany made recommendations related to the decriminalisation of abortion and the implementation of measures to guarantee that women have access to ‘fulsome reproductive health services’, such as abortion medication and procedures to interrupt pregnancy. Moreover, both the Committee on the Elimination of Discrimination against Women, the Human Rights Committee, and the Special Rapporteur on violence against women have made similar recommendations to the State in the past, urging Argentina to adopt new legislation to introduce additional exceptions to their abortion ban, such as in cases of foetal impairment.
Despite these repeated recommendations, a previous bill aimed at legalising abortion was rejected by Argentina’s Senate in 2018, to the regret of UN rights experts. A possible explanation for previous failures to pass similar bills can be found in the strong influence of the Catholic Church in Latin America, with bishops believed to have intensely lobbied against decriminalisation. However, unlike previous attempts, this time around the initiative could count on the support of the President, who had included decriminalisation of abortion in his election campaign. This most recent initiative could also count on increased pressure from the general public to decriminalise the procedure. Although the Argentinian ‘pro-choice’ movement has been advocating for the legalisation of abortion for many years, since the Senate rejected the last initiative in 2018 ‘engagement by a new generation of women’s rights activists seems to have intensified, even amidst a pandemic major public demonstrations helped to keep the issue high up on the political agenda’. The adoption of the Argentine law clearly illustrates civil society’s impact on the promotion and realisation of human rights and demonstrates that resilience can indeed lead to tangible change.
This social movement – symbolised by the green handkerchief – has already spread across Latin America, a region known to have restrictive policies regarding the termination of pregnancy. Abortion is currently only legal in Cuba, Uruguay, Guyana, the French overseas department of French Guyana, Puerto Rico, and in two out of 32 Mexican states. On the other hand, the termination of pregnancy is completely prohibited in Honduras, Nicaragua, El Salvador, the Dominican Republic, and Haiti. Other countries such as Brazil, Bolivia, and Colombia provide exceptions in their legislation in cases of rape or to save the mother’s life. In 2013, Brazil’s Supreme Court also decriminalised the termination of pregnancy in the case of an encephalic foetus, following the example of a decision made by Colombia’s Constitutional Court in 2006. Furthermore, Colombia’s Constitutional Court adjudicated a case in early 2020 aiming to re-criminalise abortion in the country, which it dismissed thereby reaffirming that the termination of pregnancy is a right in cases of foetal impairment, rape, and when the pregnancy poses a threat to the mother’s life. Likewise, in 2017 Chile legalised abortion under the same circumstances through a law that was approved by Chile’s Senate during the presidency of Michele Bachelet – now UN High Commissioner for Human Rights.
Given that Argentina is Pope Francis’ home country, the State’s decriminalisation of abortion may send a clear message to the wider region. However, whether this will influence neighbouring States to follow the same path and take concrete steps towards the elimination of discrimination against women remains unknown. While the legalisation of abortion in Argentina has been celebrated as a major victory by human rights advocates and leaders around the world, others have expressed disappointment. For instance, the far-right President of Brazil, Jair Bolsonaro, posted on Twitter that ‘as far as it depends on me and my government, abortion will never be approved on our soil’.
Unfortunately, pushbacks against women’s reproductive rights occur frequently throughout the world. For instance, in the United States the nomination of Justice Amy Coney Barret to replace Justice Ruth Bader Ginsburg in the Supreme Court has been followed by some states taking legal measures that could potentially challenge Roe v. Wade. Meanwhile, in mid-2020 Mexico’s Constitutional Court voted against decriminalising abortion for pregnancies of up to 12 weeks on a claim regarding changes to the Penal Code of the state of Veracruz, which could have had repercussions for the rest of the country, possibly encouraging other states to make similar modifications to their local penal codes. These type of ‘pushbacks’ are not exclusive to the Western hemisphere, for example in October 2020, Poland’s Constitutional Court ruled against abortion in cases of foetal abnormalities, which in practice amounted to nearly a total ban of the procedure. Since prior to the Court decision the vast majority of abortions (98%) performed in Poland had been conducted in cases of foetal abnormalities. While today only abortions undertaken in cases of rape, incest, and when the pregnancy poses a risk to the mother’s life remain legal. This decision was strongly criticised by the Council of Europe, whose Commissioner for Human Rights, Dunja Mijatović, affirmed that it ‘amounts to a ban and violates human rights.’ In a recent resolution, the European Parliament also noted its disapproval, stressing that the decision ‘puts women’s health and lives at risk’.
Conversely, there have also been many other positive developments. In 2020, New Zealand passed a law to legalise abortion after having classified it as a health issue rather than a crime. Later that same year, abortion was completely decriminalised in Northern Ireland after a 2019 Act imposed a State duty to implement the recommendations made by CEDAW in 2018. As of 1st January 2021, abortion is no longer a crime in South Korea since its Constitutional Court ruled a 1953 law banning abortion as unconstitutional.
These cases may provide hope to human rights advocates around the world and encourage them to continue urging States to protect and promote women’s sexual and reproductive rights. Recent experiences have also shown that it is equally important to ensure adequate safeguards of existing sexual and reproductive rights legislation to prevent pushbacks. It is also critical to retain that although decriminalisation is essential, it is not an end in itself, but part of a long process. Hence, the next challenge for Argentina will be to ensure the law is applied in the whole country and to ensure equal access to this right for all women regardless of their economic, social or other status. Though UN human rights experts welcomed Argentina’s new law and applauded ‘the extraordinary mobilisation of all activists in the country’, they also warned that ‘much remains to be done to ensure women’s and girls’ rights to equality and highest standard of sexual and reproductive health’.
Feature picture: Demonstration in support of the voting in the Senate of Argentina for a law of legal, free and safe abortion by Protoplasma K licensed under CC-BY-2.0
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