By Ximena Casas Isaza and Catalina Martinez / Just Security
When Dobbs vs. Jackson was decided by the U.S. Supreme Court on June 24, overturning Roe v. Wade, the case drew all eyes to reproductive rights issues in the United States. For half a century, advocates around the world looked to Roe v. Wade as a landmark decision and advocacy model for reproductive justice. But the Dobbs decision now places the United States behind other countries that center women’s autonomy and human dignity in the regulation of abortion.
As Latin American feminist advocates, we have seen firsthand how the lack of access to safe and legal abortions has impacted the life and health of many women, girls, and pregnant people across the Western hemisphere. Making access to sexual and reproductive health services a reality is a matter of social justice, democracy, and human rights.
With Roe now overturned, we would like to share some lessons learned from the sisterhood of the Green Wave, the feminist movement working on reproductive rights that began in Argentina and spread through and beyond Latin America, that could inspire the fight against anti-abortion laws in the United States and worldwide.
In September 2021, the U.S. Supreme Court agreed to hear a case filed by the Center for Reproductive Rights (for which one of the authors works) and its co-counsel on behalf of Jackson Women’s Health Organization – the last abortion clinic in Mississippi – challenging as unconstitutional Mississippi’s ban on abortion after 15 weeks of pregnancy.
Mississippi’s initial position was that its ban was consistent with Roe. After the confirmation of Justice Amy Coney Barrett, however, the state’s attorneys changed course and explicitly asked the Court to uphold Mississippi’s 15-week abortion ban by overturning Roe v. Wade. The Court agreed, ruling there is no right to abortion protected by the U.S. Constitution.
The Importance of Roe
Roe v. Wade is a 1973 constitutional precedent in which the Court held, by a vote of 7-2, that the guarantee of “liberty” in the Fourteenth Amendment of the U.S. Constitution, or the Ninth Amendment’s reservation of rights to the people, broadly protect individual privacy, including the right to abortion prior to fetal viability.
This landmark decision ultimately recognized Dobbs’ overturning of Roe broke the Supreme Court’s long line of decisions recognizing that intimate and personal decisions are protected by the right of privacy from governmental interference, which means that same sex marriage, use of contraception, and other rights protected by this jurisprudence might be jeopardized by the Dobbs decision as well.
Abortion Regulation and Social Movements in Latin America and the Caribbean
In Latin America and the Caribbean (LAC) region, six countries still ban abortion in all cases, even when the life or health of the pregnant person is in danger or when the pregnancy is unviable or caused by rape or incest: the Dominican Republic, El Salvador, Haiti, Honduras, Nicaragua, and Suriname.
In the majority of the LAC countries where abortion is legal, states usually have one of two types of regulations:
- The grounds model: in this model, abortion is criminalized except in some specific circumstances, such as when the pregnancy is the result of rape, is inviable, or exposes a risk for the life or health of the pregnant person. However, data from local and international organizations have shown that it is an inefficient and insufficient model because women and girls whose situations fell within the legal exceptions faced obstacles as the lack of public information about the scope of legal grounds for abortion; health facilities imposing arbitrary hurdles or waiting periods; health officials reporting patients who need access to post-abortion care to law enforcement; not having health facilities nearby to access adequate and safe abortion care services; criminal prosecution; stigma; mistreatment by health professionals; and a narrow interpretation of the exception that permits abortion to protect the person´s health and life; among others.
- The mix model: under this model, access to legal abortion services is not conditioned on compliance with specific requirements, at least during that period in which unrestricted abortion is allowed. This is the latest model used in Uruguay, Argentina, Colombia, and some states in Mexico. After this period of time a grounds model continue to exist.
Worldwide there is a third model that we truly believe should be the path for legal abortion: the decriminalization model. This model, incidentally, has just been recommended by the World Health Organization. Countries such as Canada and New Zealand, some cities in Australia, and the state of New York eliminated the crime of abortion from the penal code, recognizing that abortion is an essential health care service and needs to be regulated only through health regulations.
Until recently, the exception model was the most common regulatory framework in LAC countries. But growing social movements have played an important role in successful campaigns to expand access to reproductive care. Increasingly, feminist activists in any one country are looking to and learning from others. For example, the green scarves used now as the resistance symbol of the abortion fight, were inspired by the Grandmothers of the Plaza de Mayo in Argentina, who wore white scarves to call attention to the government’s abduction and murder of their loved ones during that country’s last dictatorship, from 1976 to 1983. The use of green scarves in women’s rights mobilizations soon spread in Latin America and elsewhere.
Lessons from Latin America
Integrate modern constitutional and human rights frameworks
Many legislators and judges in Latin America are moving their regulations closer to compliance with international human rights obligations. These changes are in line with the global trend to expand access to legal abortion by incorporating international and regional human rights law into domestic law and protected in their respective constitutions. We will focus on the most recent precedent in the region.
On February 21, 2022, Colombia’s Constitutional Court took a historic step to guarantee reproductive rights by decriminalizing abortion up to 24 weeks of pregnancy. Abortion after 24 weeks is also legal in Colombia but only under some grounds in place since 2006: when a pregnancy poses a risk to the health or the life of the pregnant person, is nonviable, or is the result of rape. This was the result of a lawsuit filed in September 2020 by the Causa Justa movement (Fair Cause), a movement of more than 200 organizations and activists in the country.
In reaching this important decision, the Court noted that multiple international human rights bodies – including the Committee on Economic, Social and Cultural Rights (ESCR Committee), the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of health and the Committee on the Elimination of All Forms of Discrimination against Women (CEDAW Committee) – have raised the need to decriminalize abortion in order to preserve sexual and reproductive health and rights.
After analyzing human rights standards, the Court declared that Colombia’s complete criminalization of abortion was a violation of fundamental rights including, but not limited to the right to health (interpretating General Comment No. 14 and General Comment No. 22of the ESCR Committee); the right to equality (interpretating Article 9 from the Belem Do Pará Convention, and recognizing that due to criminalization of abortion, women face stigma when trying to access this procedure even under the authorized exceptions); and the right to freedom of conscience (considering that it must be the woman herself, in accordance with her religious, moral, ethical, or spiritual convictions and conscience who makes the decision about continuation or termination of a pregnancy).
Authoritative interpretations of international human rights law establish that denying women, girls, and pregnant people access to abortion is a form of discrimination that jeopardizes a range of human rights. Likewise, the Special Rapporteur on the right to health has stated that laws criminalizing and restricting induced abortion are “impermissible barriers to the realization of women’s right to health and must be eliminated.”
A human rights framework has been very important across Latin America in not only recognizing the right to access an abortion but also creating an obligation from the state to guarantee this right and this healthcare service. As a result, abortion services have been integrated into health care systems across LAC.
Emphasize that abortion restrictions do not stop abortion from happening
We know from our regional work that the criminalization of abortion not only undermines the ability of women and girls to access essential reproductive health services, but it also exacerbates inequalities and discrimination, with deadly results. According to the World Health Organization, the rate of unsafe abortions is four times higher in countries with restrictive abortion laws than in countries where abortion is legal.
In Colombia, a study by La Mesa por la Vida y la Salud de las Mujeres (conducted before the 2022 ruling) found that only between 1 and 12 percent of abortions are performed legally in the health system, with a large concentration of services in the main cities. This means that most women are forced to have unsafe abortions even in cases where they fall under one of the exceptions allowed under Colombian law or forced to continue with unwanted pregnancies. Almost without exceptions these women live in vulnerable conditions – whether in poverty, in rural areas, or other marginalized circumstances.
These data played a very important role in putting this topic in the public conversation, allowing civil society groups to show how the grounds model was not working for most of the country, and particularly people living in the most vulnerable conditions. The data also helped to position abortion access as a social justice matter.
In the United States, the specific information needs will likely be different, because the disinformation challenges are different. But the Latin American experience shows that developing and presenting data in a way that is compelling to each target audience is an important part of building a coalition in support of reproductive justice.
Research from local and international organizations, such as the Stolen Lives reportpublished by Planned Parenthood Global focusing on the effects of pregnancies on girls aged 9-14, expose the implications of forcing a girl to carry a pregnancy to term by cutting off termination options. These implications include putting her at risk of severe physical and mental health complications, and even death. In addition to the research discussed above, which focuses on the effectiveness of abortion restrictions, this type of research exposes rights abuses of women and girls arising from restrictions on reproductive rights. This research provides empirical support for the argument that abortion rights are essential from a human rights perspective. By helping to expose patterns of human rights violations, such information also shapes the dialogue with decision makers about the importance of recognizing the right of women, girls, and people with capacity to gestate to terminate their pregnancies by putting the human rights of pregnant people at the center of the regulation analysis.
In Colombia, studies conducted by La Mesa por la Vida y la Salud de las Mujeres as well as the data provided by the Attorney General Office was key to support advocates’ argument that the exception model was not enough in Colombia. The evidence showed that women and girls still faced many barriers to accessing services, even when they met the legal exceptions, and that criminal law was not an appropriate tool to regulate this essential health service. As a result, Colombia´s Constitutional Court concluded that the criminalization of abortion was a disproportionate and unnecessary approach to protecting the life of the fetus, as criminal law should be used only as a last resort and not to harm women’s rights. It also acknowledged that the criminalization of abortion mostly affects women and girls in vulnerable situations.
This lesson could be applied by advocates worldwide to argue for the elimination of abortion from penal codes and for regulation of the procedure instead through health initiatives. Examples of how this regulation outside the criminal code works were presented in the public debate in Colombia and were documented by Dejusticia, a local human rights organization, in this report.
Mobilize Grassroots Campaigns
Successful efforts to protect and expand reproductive rights in Latin America have relied on mobilization from the bottom up to demand judicial rulings and legislative actions that center women’s autonomy and rights, including protecting women against violence. As we have seen in the recent victories in Argentina, Mexico, and Colombia, advances have been made in large part as the result of the Green Wave women’s rights movements, which reflect concerted efforts to place women’s autonomy and rights at the center of the abortion discussion.
In Colombia, advocates took inspiration from Argentinians to advocate for the “social decriminalization” of abortion. Alongside a legal strategy, the movement implemented an advocacy and communications strategy to destigmatize and combat misinformation about abortion. The campaign targeted not only lawmakers but also the people at large, with a commitment to pedagogy, mobilization, and awareness, recognizing that no legal change could be implemented without a cultural transformation. Reproductive justice advocates took to the streets, the press, and social media with our messages. This enabled us to attract media coverage that was both factual and gender-sensitive, and many political and opinion leaders outside feminism joined our cause.
Thanks to these campaigns and mobilization, the public discourse is changing to understand how forced pregnancies affect every aspect of the lives of women and girls. As a movement, we have learned to use simple language, and to share stories as key advocacy strategies. For example, the Center for Reproductive Rights and other organizations documented and spread awareness of the cases of Lucía, Norma, Fatima, and Susana (and thousands of girls like them), who have been forced to continue pregnancies resulting from rape. A multiplatform communications campaign called “Niñas, No Madres” (“Girls, Not Mothers”) was launched to inform and engage the public about the serious consequences of sexual violence and forced motherhood in the lives of Latin American girls.
Finally, as a movement we have also learned to give words their meaning and reclaim words that have been used by the anti-choice movement, such as the “right to life.” We often refer to the right to voluntarily terminate a pregnancy, and instead of referring to anti-abortion campaigners as the “pro-life” movement, we refer to “opposition groups.” We have understood that words carry weight and abortion is one of those that has been heavily stigmatized.
The recent rulings on abortion rights in Latin America have been rooted in human rights protected in their respective constitutions. But these rulings have been enabled by grassroots, regional, and international movements to develop the legal arguments that abortion and other reproductive rights are, in fact, key human rights. Moreover, they have been issued in social contexts informed by evidence of abortion bans’ inefficacy and inequity, of the life-altering impacts of forced pregnancy, and of the insufficiency of exceptions within a framework of criminalization. Finally, advocates have actively worked to reshape public discourse on abortion, including by emphasizing the links between violence against women, girls, and pregnant people and denials of bodily autonomy, such as limitations on healthcare.
Now it is time for the United States to look to the Global South for lessons learned on placing reproductive autonomy and dignity at the center of these discussions – and how to translate those discussions into legal protections for reproductive rights.