On September 6, 2023, several newspapers around the world turned their eyes towards Mexico because of the Supreme Court’s decision to repeal the criminalization of abortion and to establish that federal health institutions such as ISSSTE, Social Security or the Ministry of Health and Assistance can now perform abortions without questionning women. This great achievement is the result of years of struggle and small and large advances of groups that for decades have been seeking for women to have the right to decide and have access to health services for the interruption of pregnancy in a legal and safe way. This news gives us the opportunity to review some aspects of this important issue and how much has happened at the continental level in recent years. The purpose of today’s contribution is to reflect on this and thus commemorate September 28th, the Day for the Decriminalization and Legalization of Abortion, established in Argentina in 1990 at the V Latin American and Caribbean Feminist Meeting.
First of all, a lot needs to be said about the organized work, courage and the great role played by organized groups in Latin America, especially in Argentina, Mexico and Colombia, where the emergence of the “Green Tide” phenomenon, initiated precisely on September 28 in 2017 in Argentina, has energized other nations. The movement made up of activists, artists and writers, and which has been supported and disseminated by writers such as Claudia Piñeiro, Selva Almada and Gabriela Cabezón Cámara, have formed a collective voice that, under a green handkerchief -between Pantone’s 347 C and 3415 C, inspired by the white handkerchief of the Mothers of the Plaza de Mayo- has brought substantial changes to the laws of various countries. It has not worked in all of them, but the case of Mexico encourages this fight.
The changes have been gradual. In Argentina, for example, on January 24, 2021 -a year in which it was estimated that more than 50,000 women were hospitalized due to complications from clandestine and unsafe abortions- Law 27,610 comes into force, giving women the right to interrupt their pregnancy, protecting them in the “voluntary interruption of pregnancy” (IVE) up to 14 weeks and the “legal interruption of pregnancy” (ILE), in case of rape or if their lives are in danger. In Colombia, in February 2022, Ruling C-055 will decriminalize abortions performed up to 24 weeks and recognize safe abortion as a fundamental element of women’s sexual and reproductive health. To date, only 7 countries in the Caribbean and Latin America have safe abortion: Cuba (1961), Puerto Rico (1973), French Guyana (1975), Guyana (1995), Uruguay (2012), Argentina (2021), Colombia (2022) and now Mexico (2023). However, much has been seen that even in countries where it has been decriminalized and is seen as a right, there are “a whole range of grays” to interpret the Law or to assist women, putting obstacles for them to have the procedure, as stated in the report Laws and Shadows. Regulation of Abortion in Latin America, presented at the VII Conference of the Latin American Consortium Against Unsafe Abortion (CLACAI).
In contrast to these countries are others such as Brazil that continue to be bound by laws such as articles 124 to 127 of the Brazilian Penal Code, which says that abortion is only permitted when it is the result of rape or when the woman’s life is in danger. The punishment in that country ranges from 1 to 3 years in prison. In other countries the law is even more severe as in the case of El Salvador, Haiti, Honduras, Nicaragua, Suriname, Jamaica and Dominican Republic, where abortion is criminalized always and under any circumstance.
In the case of other countries, the resistance of conservative groups has reversed achievements that had been obtained, such as what is happening in the United States. We still have the bitter taste of the moment when the Texas Senate approved the so-called Bill 8 in September 2021, which made that state the first in the country to reduce the legal time for an abortion to 6 weeks and which opened the possibility of a civil lawsuit against any person who aborts, as well as against whoever helps her in the procedure, transports her or even advises her; besides giving the right to any person to sue her civilly in search of financial compensation.
The snowball that this created, along with other lawsuits such as the one in Mississippi on the number of weeks for a legal abortion, led to something that was already coming. On June 24, 2022, the Supreme Court of Justice abolished the ruling known as “Roe vs. Wade”, established in 1977 and which for almost 50 years had protected women’s right to a safe abortion and not to be criminalized. The fragility of this case and of being able to reverse it lies in the fact that this ruling never became a law, and hence the judges “returned this decision to the people” and to their local representatives, making it a state issue and not a national one.
What has happened since that day to date can be described as a cascade of legal actions to ban abortion and make life even more difficult for those who need to have one. Examples include Florida Governor Ron DeSantis, who in April of this year passed a law making abortion illegal after 6 weeks of pregnancy. Iowa does the same in July. Today, 21 states in the U.S. either ban abortion under any circumstances or are reducing the number of weeks in which it is permitted, as can be seen in the chart published by The New York Times, “Tracking Abortion Bans Across the Country”. What is concerning about this slow conservative advance is that in order to counteract it, it must be fought from the courts, at a time when the political situation of the country is not helping and when conservative groups are gaining political space and investing large amounts of money to achieve it.
The case of Mexico presents another scenario in which the states also play an important role. On the one hand, the repeal of the law is accompanied by the SCJN’s order to the Congress to be executed before the end of the ordinary session. December 15. However, in a country where Federalism gives independence and autonomy to the states and the fact that they have Criminal Codes at the state level, makes the situation more complicated. In other words, in order for this to be valid at the national level, it will be necessary to work state by state to initiate separate processes or amparos to make changes in their Codes. In this case, of the 32 states, where only 12 have already done so, there are still 20 more where the resolution of September 6 will update them and their Congresses will have to make the necessary corrections in their respective Criminal Codes.
The next problem that can be seen coming, as Veronica Esparza of GIRE says in an interview with BBC Mundo, is the time it will take for this to become common knowledge among governmental and health care institutions at the state level so that it is clear what this resolution means and what the facilities have and must do. And, although the law still respects “conscientious objection”, which is of an individual nature, there cannot be an institutional objection in the case of a federal institution. Two other problems will be the release of the women who are already in jail for this alleged crime and the interruption of the proceedings that have already been initiated. The important thing is to release them, to reinstate them and to make restitution for the moral damage they have suffered.
Talk of the right to choose, the right to safe and legal abortion and women’s right to contraceptive methods has been demonized by conservative groups across the continent. Political interests, misinformation and religious bias have historically clouded their view of what is at stake. This is extremely dangerous especially when talking about countries like Mexico, where every year 350,000 teenagers become pregnant, where 9,000 of them are between 10 and 14 years old, or in regions of the world like Latin America and the Caribbean, which have the second highest rate of teenage pregnancies and where the social system prevents the relevant denouncements from being made. In this great effervescence that we are experiencing, something that is clear is that changes to the laws must be accompanied by sex education programs, accompanying the growth of minors and deconstruction of gender roles that reinforce violence as a characteristic of manhood. Books like Cometierra o Miseria by Dolores Reyes, Chicas muertas or Ladrilleros by Selva Almada show us realities that clearly show the weight of a society where the abuse of young women and girls has been normalized, that a pregnant woman who wants to have an abortion is not a criminal, and that men and women are victims of a patriarchal system that must change.
We owe a lot to the “green tide” and to the groups that continue to fight legally for the right to choose; we owe a lot to the social groups that accompany those who are facing this difficult decision.
Adriana Pacheco, PhD. es investigadora y es escritora. Fundadora del Proyecto Escritoras Mexicanas Contemporáneas y la fundadora y conductora de la página web y podcast Hablemos, Escritoras. Es autora de los libros Romper con la palabra, violencia y género en la obra de escritoras mexicanas contemporáneas y Rompiendo de otras maneras, cineastas, periodistas, dramaturgas y performes. Es miembro del International Board of Advisors en la Universidad de Texas, Austin. Su Twiter es @adrianaXIX_XXI
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