Lucila was twenty-two when I spoke with her in 2004 in the mud-floored office of a women’s group on the outskirts of Buenos Aires, while conducting research for a report on reproductive rights in Argentina. During her first pregnancy two years earlier, the doctors at the local public hospital had diagnosed her with a rare heart condition, which converted her otherwise healthy pregnancy into a potentially lethal situation. Lucila was told, in no uncertain terms, that another pregnancy could kill her.
Nevertheless, when Lucila begged these same doctors to sterilize her, they refused the operation, telling her that she was “too young” to stop procreating. Lucila suffered regular beatings and rape at the hands of her husband and was unable to prevent another pregnancy—when I talked to her, she was already showing. And though she qualified for a legal abortion, even under the very strict Argentina law, she was barred from having one due to lack of proper regulation and the extreme stigma attached to abortion.
I later learned Lucila had managed to terminate her life-threatening pregnancy illegally. I did not hear under what conditions, though chances are they were not good. The Argentine health ministry admits that illegal abortions account for approximately one-third of maternal deaths in the country.
(This post is chapter from a newly published book, The Unfinished Revolution: Voices from the Global Fight for Women's Rights)
While Lucila’s situation probably is extreme, it is by no means exceptional. Latin America is home to some of the world’s most restrictive abortion laws. Three countries criminalize abortion in all circumstances, even when the pregnant woman’s life can only be saved through terminating her pregnancy: Chile, El Salvador, and Nicaragua.
Across Latin America, most countries apply an “exceptions” model where abortion generally is outlawed but penalties are waived in specific circumstances, such as if the pregnancy threatens the life or health of the woman, if the pregnancy is the result of rape or incest, or if the fetus is so seriously damaged it is unlikely to survive birth. Only in Mexico City and Cuba is abortion freely available to all women and girls who need the intervention, as long as they seek an early termination.
The restrictions placed on access to legal abortion have not made the practice scarce. In Argentina, an estimated 40 percent of all pregnancies terminate in induced abortions. In Peru, that proportion is 37 percent, and in Chile 35 percent. Most other countries in the region, including Mexico but also the United States, maintain a 20 percent ratio—one induced abortion for every 4 live births.
In fact, if you look at criminal law as only one of many potential policy instruments to affect the social phenomenon that is abortion, it would appear to be a very ineffectual choice: where abortion is illegal, it is equally—if not more—prevalent than in jurisdictions where it is legal. Also where abortion is illegal, it is much more likely to be unsafe. “You get overwhelmed by desperation,” a thirty-five-year-old mother of ten children told me in Argentina. “You seek all the ways out, pills, anything. But if there is no way out, then you take a knife or a knitting needle.”
Despite these facts, there are harsh criminal consequences for abortion in most Latin American countries. When it comes up in political or legislative debate, the criminalization of abortion is justified with reference to a need to protect the right to life of the unborn, and to a reluctance to “promote” abortion, which is considered a moral evil. In Peru, a prominent member of congress reportedly said it is better for a pregnant woman to die—and for her unborn child to die with her—than for her to have an abortion. This same argument was aired in Nicaragua when the parliament in 2007 decided to criminalize so-called therapeutic abortion (to save a woman’s life and health), which had been legal since 1893.
Complex Notions of “Right” and “Wrong”
It is of course true that any government has a vested interest in promoting a civic sense of right and wrong. As human rights activists we routinely expect governments to promote laws that dictate certain morals, such as equality between men and women, the inappropriateness of corporal punishment, and the need to abolish the death penalty. The difference between these issues and abortion is not that abortion is too complicated. There is actually quite broad agreement in most Latin American countries that while abortion is “wrong,” so are blanket bans of the practice.
The difference is that laws that promote equality and ban violence are generally effective in doing just that. Constitutional protections of equality, for example, have led to guarantees of equal pay for equal work. And the effective prosecution of domestic violence and even jaywalking has been proven to deter those practices, at least in part.
By contrast, the morals expressed through the stigmatization and criminalization of abortion are routinely set aside by women and girls who feel they need to terminate their pregnancies. In fact, of the hundreds of women I have interviewed over the years about pregnancy and choice, many have only a rudimentary or confused understanding of the law, but they have a clear sense of what is right. I have spoken to many women from various countries in Latin America who have expressed beliefs about the moral acceptability of abortion in specific circumstances, depending on the financial, marital, or emotional situation of the pregnant woman, and her ability to love the child if he or she were ever born.
“I don’t think [abortion] is really all that criminal during the first month,” Marienela, a thirty-seven-year-old mother of six, confided in me, as we were huddling in the corner of a dark old stable that functioned as a social hall in a slum quarter outside of Santa Fe, Argentina. “But if you already are seven months pregnant, then you have to have it.”
“Sometimes abortion is the best option,” a staunch pro-life activist said to me in 2006. The same woman declared not to believe in the need for modern contraception, but readily conceded the untenable nature of the current setup in her neighborhood, a muddy slum on the outskirts of Tucumán, Argentina: “The most usual form of contraception here is nothing: people either have children or badly done abortion...It’s still something I am thinking through, but I know we have to work on making sure that no one needs to get to that point.” She then looked at me and said quietly, “You cannot even imagine what women end up putting in their uterus.”
The sentiment that abortion is not a moral evil if you didn’t want to be pregnant in the first place is both prevalent and pragmatic in the many women I have spoken to, and also surprisingly clear. “Abortion is necessary,” said one woman in Nicaragua in 2007. “You can’t just bring an undesired child into this world, especially when you didn’t try to have one.” In fact, women and girls already know what they need in order not to need abortions. The vectors that influence real choice are neither fetal rights nor physical autonomy in the abstract. It’s a very concrete sense of what is possible and what makes for a better life—mostly for the child.
Time and time again, women articulate concern about economic stability and the need to feed an existing family. They talk about apprehension with regard to bringing a child into an abusive relationship, often only commenting in passing on their own suffering and pain. They talk at length about difficulties in accessing affordable, easy-to-use, safe, and effective contraception of their choice.
And they always describe variations on a theme that sounds ideologically motivated but happens to be empirically true: that while women in Latin America are socially dependent on men, men are not held responsible for the reproductive disasters that ensue from the unprotected sex they often pressure women into having. “She got herself pregnant” is invariably the response I get from public officials to questions about why a particular woman should suffer through an unwanted pregnancy or unsafe birth. At times it is delivered with a dismissive shrug: “She is responsible for herself.”
Why Legalize Abortion?
These very real experiences should make for excellent public policy: tackling the three issues of violence against women, access to contraception, and gender-based discrimination is what will make abortion less needed. The legalization of abortion will make the practice safe. Most of these facts are undisputed. The real question is why none are adequately addressed in Latin America today.
The short answer is power. Everywhere in the region, proposals to legally limit access to abortion, and even absurd moves to extend the right to child support for all ova fertilized through rape, are used as political chips.
In Nicaragua, a 2006 vote to eliminate access to abortion for women whose lives were threatened by their pregnancy was scheduled a mere ten days before the presidential elections, and most accounts suggest that this was no accident. The fact is that in all of Latin America, churches are powerful players in national politics—in particular the Catholic church—and few candidates want to be seen as “pro-abortion” and thereby lose the support of the church and other politically influential conservative groups. In this particular election, parliamentarians from the Sandinista party were reportedly ordered to vote for the penal code reform so that their candidate, Daniel Ortega, would win, but with an oral promise from the Sandinista party leadership that the issue would be “solved” after the elections. Meanwhile, Ortega went on record saying that “abortion is murder.” More than five years after the blanket ban on abortion went into effect in Nicaragua, it is still in force with disastrous effects on women’s health and lives.
In Mexico, after the Supreme Court in August 2008 upheld a Mexico City law to legalize abortion in the first trimester, several federal states in the country moved to amend their state constitutions to ban it.
Most of these constitutional changes have little effect on women’s real access to legal abortion in those states: it was nearly impossible before and obviously not much better after. However, the fact that state legislatures were willing to spend time and energy on laws that are likely to have little effect on their stated objective is testament to how politically viable anti-choice arguments are, and how little power can be gained by raising the fact that women and girls continue to have abortions—some safe and most unsafe—regardless the legislative framework. And during the presidential campaign in Brazil in 2010, the ruling left-wing party dropped the support of sexual and reproductive rights from its draft human rights plan, perhaps in the hopes that this would ensure the support of the Catholic church which had started publicly referring to then-President Lula as “Herod,” an allusion to the king who, according to biblical accounts, ordered baby boys to be killed. During the Pope’s 2007 visit to Brazil, Lula had already publicly pledged that his government would never propose the legalization of abortion, but this further step was thought necessary to appease the church.
The point is not that morality-based arguments for the criminalization of abortion are always a cheap veneer on actions that are motivated by political gain. In fact, my interaction with activists on both sides of the apparent abortion divide suggests to me that most people who profess to be either staunchly pro-life or staunchly pro-choice in fact are deeply attached to their beliefs and the morality on which they base them. With civility and mutual respect, these beliefs should be aired in public debate.
The point is that the morality of public policy depends on both its intention and its effect. The effect of abortion bans—in particular in the Latin American context of gender inequality and limited access to contraception—is death and suffering for the women who need abortions, with no discernable effect on lowering the number of abortions. As such, abortion bans are both ineffective and immoral.
Unfortunately, the bans continue. Six years after I talked with Lucila, I interviewed another woman in the same impossible situation. Silvia, who suffers from a serious kidney disease that could make another pregnancy near fatal for her, told me she received no help or even sympathy from the doctors who would tell her almost in the same breath, on the one hand, that she couldn’t be pregnant and, on the other, that she had to carry the pregnancy to term: “I said, ‘But you told me that I shouldn’t have it! . . . I am close to needing dialysis as it is.’ . . . I said, ‘Are you going to guarantee that nothing will happen to my health?’ . . . She said, ‘I can’t guarantee that.’”
Winds of Change
Despite this grim state of affairs, there are indications that things are slowly starting to change for the better. In April 2007, abortion was decriminalized in Mexico City, and this law was later upheld as constitutional by Mexico’s Supreme Court. In 2008, Uruguay’s congress approved a law to legalize abortion in the first trimester of the pregnancy. At the time, the law was immediately vetoed by the president, but a similar proposal is currently under consideration with much better prospects. In November 2010, the Argentine Congress also started a series of hearings on the legalization of abortion.
All of these developments are fueled by a growing empathy for the plight of poorer women, in particular. Most people know someone who has had an abortion, and it is increasingly an open secret that the criminalization of abortion mostly affects women who can’t afford to go to the United States or to a private clinic for an illegal but safe intervention. The general rhetoric of the Latin America media on abortion has changed radically, even just over the past five years: questions and comments are now more about why women need abortions, not how to punish them for it.
Indeed, surveys confirm that most people in the region have a much more nuanced understanding of abortion than their elected officers: it must be legal, accessible, and rare. It is only a matter of time before policymakers catch on.