“ES LEY”: Argentina Legalizes Abortion
Cassia RothThe flashing words “ES LEY” (It’s law!) marked the occasion: on December 30, 2020, Argentina’s Senate voted 38-29,with one abstention, to legalize abortion for any reason (“on demand”) in the first fourteen weeks of pregnancy. What’s more, public hospitals will provide the service free of charge. Argentina now joins its neighbor Uruguay, which legalized abortion in the first twelve weeks of pregnancy in 2012, Mexico City, which did the same in 2007 (as did the southern Mexican state of Oaxaca in 2019), Guyana (1995), and Cuba (1965).
Argentina’s momentous legal shift in favor of abortion rights was the consequence of widespread and sustained feminist grassroots activism. Although feminists have long advocated for a reform in abortion laws in the country, a newfound energy emerged in 2015 from the #niunamenos (#notoneless) campaign, which decried violence against women in Argentina. The campaign quickly spread throughout Latin America. In Argentina, activists began incorporating the criminalization of abortion as another facet of gendered violence, arguing that maternal deaths from illegal and unsafe abortions were part and parcel of the plague of femicides in the country. A majority of this campaign consisted of winning hearts and minds: the country’s vice president, Cristina Fernández de Kirchner, who opposed abortion rights during her presidency (2007–2015), changed her mind in 2018 in large part due to her own daughter’s influence.
Kirchner’s shift in position shows the importance of individual political will in passing feminist legislation. It’s no coincidence that the legislation passed now, after current president Alberto Fernández made legalization a centerpiece of his campaign. A 2018 senate vote on a similar bill failed 38-31 (with two abstentions). The right-of-center president at the time, Mauricio Macri (2015–2019), personally opposed abortion but declared he wouldn’t veto the bill. His ambivalence proved detrimental for progressive legislation as he failed to rally lawmakers to the cause and never provided leadership on the issue. The Fernández administration’s active support for legalization, in contrast, was crucial in the passage of the law.
Religiosity – or lack thereof – was cited as an important part of changes in public opinion in Argentina, and the issue affects abortion policy across the region. U.S. media cites the influence of the Catholic church and increasing evangelicalism as the major reason behind the recriminalization of abortion or political refusal to decriminalize it in other Latin American countries. This is true, but we need to be careful to disaggregate religious political power and personal religiosity, or at least understand the relationship between the two. They are interconnected and inseparable, yes. But in Argentina, public opinion now appears to be more liberal than its religious political representation. This is not a uniform position across the region, however. In Brazil, for example, that’s not necessarily the case, with roughly two-thirds of Brazilians opposing the decriminalization of the procedure. Political will is crucial, but so too is majority opinion.
English-language news outlets have touted the possibility for further decriminalization and even legalization in the region, hinting at a shifting progressive tide. But as I have argued elsewhere (almost incessantly it seems), we should be cautious about both viewing this legislation as one permanent step forward in history’s arc toward progress and collapsing “Latin America” into a monolith. As some countries move forward, others, including many Central American nations, move sharply back. And legalization can, and has, been reversed in the region.
Moreover, if we recognize the heterogeneity of attitudes toward and laws on abortion in Latin America, we should perhaps also include the United States in this analysis and reframe it as the “Americas.” The United States is no shining city on a hill when it comes to abortion rights in the region, and current efforts to roll back Roe v. Wade should be contextualized and historicized from an American (and I mean all of the Americas) viewpoint. The experience of a poor woman in Georgia may not differ that much from her counterpart in Chile or Colombia. And now, an Argentine woman has free abortion healthcare, something hardly anybody in the U.S. can access. Thus, the at-times gaping hole between law and practice (or access) is another part of the equation.
We in the U.S. can learn a lot from progressive legislation in Argentina and elsewhere. Abortion is enshrined in Argentine legislation as a right to abortion – not as an issue of privacy as in Roe. Abortion access is on a much firmer footing in Argentina today than it is in the U.S. Of course, our country operates on a different legal system (with case law playing the decisive role). But if we want to ensure abortion rights for future generations, maybe we should look south, to Montevideo or Buenos Aires, for guidance.
Featured image caption: Demonstration in support of the voting in the Senate of Argentina for a law of legal, free and safe abortion. (Courtesy Wikimedia)
Cassia received her PhD in Latin American History with a Concentration in Gender Studies from the University of California, Los Angeles. Her book manuscript, titled A Miscarriage of Justice: Reproduction, Medicine, and the Law in Rio de Janeiro, Brazil (1890-1940), examines reproductive health in relation to legal and medical policy in turn-of-the-century Rio de Janeiro. Cassia’s research has been supported by the Woodrow Wilson Foundation, the Coordinating Council for Women in History, the Fulbright IIE, and the National Science Foundation.