The Argentine green wave grows and spreads throughout the continent. Access to non-criminalized abortion through specific causes is no longer sufficient for Latin American women, who continue to be criminalized because, despite the fact that the laws protect them on paper, in practice they continue to encounter barriers that prevent them from exercising. Your rights.
Argentina took the first step to guarantee legal and safe access to the interruption of pregnancy with a law celebrated at the end of 2020, which establishes that abortion is allowed when the gestation does not exceed 14 weeks. In Colombia, despite discrimination in three cases in 2006: rape, fetal malformations incompatible with life outside the womb, and risk to the physical or mental health of pregnant women, women are persecuted by the judicial system. Those who live in rural areas and girls are the most affected. Now there seems to be hope. The Constitutional Court is studying a lawsuit that seeks to declare unconstitutional an article of the penal code that defines abortion as a crime. The petition, promoted by the Just Cause movement, does not intend that it cease to be regulated, but that it should be regulated from the health field and not from the penal one. “The fact that abortion is a crime creates a stigma that becomes a barrier, even in the cases in which it is allowed,” explains Catalina Martínez Coral, director for Latin America and the Caribbean of the Center for Reproductive Rights.
On the road to decriminalizing abortion, Mexico has just taken a leap. Last month the Supreme Court of Justice decriminalized abortion in Coahuila. The decision was celebrated as a milestone in the reproductive rights of Mexican women, although it has no effect for the rest of the country, where it is still necessary to present legal resources to access the procedure. In 28 of the 32 states, terminating pregnancy continues to be criminalized. “This is a ‘semi-decriminalization’ because what the Court ruling says is that the criminalization of abortion is unconstitutional, but abortion does not come out of the state penal codes,” Friné Salguero, director, told this newspaper last month. from the Simone de Beauvoir Leadership Institute in Mexico.
On September 28, while the green of the scarves colored the demonstrations in the region for the Global Day of Action for legal and safe abortion, in Chile the Chamber decriminalized the interruption of pregnancy up to 14 weeks. Since 2018, progressive opposition deputies, driven by the Chilean feminist movement, have asked to modify the current abortion law, which since 2017 allows it, but only under three grounds. “Approved the decriminalization of abortion! This is for all women and pregnant people who have been persecuted and criminalized, especially if they have fewer resources ”, then the deputy Camila Vallejo, one of the promoters of the initiative, celebrated. However, for it to become law, the Senate must pass it. There is still a long way to go in Congress for the celebration to be complete.
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In countries where abortion is allowed under three grounds, women depend on the approval of a doctor to access this practice. Those who need to take advantage of the cause of fetal malformations incompatible with life outside the uterus usually receive the diagnosis in advanced stages of pregnancy, so in many cases the medical services deny them the process. The cause of sexual violence, established in countries such as Ecuador, Colombia and Mexico, is one of the most difficult to argue. Colombia, for example, requires a criminal complaint to prove that the pregnancy is the product of rape. The judge then has the last word on a health matter. “The fact that a complaint has to be filed dissuades women from resorting to the termination of pregnancy by legal means,” says Martínez Coral, from the Center for Reproductive Rights. But just because they don’t try legally doesn’t mean they don’t. Clandestinity – and the risk of a complication – then appears as the only option.
In Colombia, girls and adolescents are the population group that most suffers sexual abuse that ends in an unwanted pregnancy and that puts their lives at risk. Until 2019, 73% of the 26,158 cases examined by the authorities for alleged sexual violence had a girl or adolescent between the ages of 0 and 17 as the victim. They are also the ones who suffer the most from harassment by the penal system. According to the Mesa por la Vida y la Salud de Mujeres, complaints of abortion against minors correspond to 12.5% of the total cases investigated, 24% of the total convictions also fall on them.
In Central American countries like El Salvador, where under any circumstances abortion is criminalized, even women who have obstetric emergencies end up in jail. The laws are so harsh that when faced with emergencies, the law intervenes and many women, instead of receiving medical attention and psychological support, are arrested for murder, with prison sentences of up to 30 years. There it seems to be further to guarantee their reproductive rights. This week the Legislative Assembly rejected to reform the penal code to exempt from judicial responsibility those who perform or consent to an abortion, even when the woman’s life is at risk. Prison is still the punishment for whoever dares to decide on his body.
“Eliminating the crime of abortion from the penal code means protecting the girl victims of sexual violence who were not adequately protected to prevent the victimizing acts from occurring and being subsequently criminalized, even if they are on the grounds,” he warns in a report that will be presented this Table for Life and Women’s Health week. That it is not a crime would also stop clandestine abortions, but it would also recognize – they point out from the organization – “the evolving capacity that girls and adolescents have to make free and informed decisions about their own body and their life project.” Given that three out of four cases examined for alleged sexual offenses in Colombia affect minors, this consideration could be crucial for hundreds or thousands of young women in the country.
Aurora, a woman from Costa Rica, has experienced the tragedy of having an unviable pregnancy, but still being forced to continue with it. Her case, which is in the Inter-American Commission on Human Rights (IACHR) awaiting a ruling, is a painful example of how, even with a ruling that leaves the baby for dead before birth, the right to decide to terminate a pregnancy It is not guaranted. Although the Costa Rican penal code allows it to protect the life and health of the mother, the lack of clear rules causes fear in many doctors and the law is not always followed.
“They forced me to see in each ultrasound how my son was malformed,” says Zoom from Costa Rica. Aurora was diagnosed with “tummy wall syndrome” and the doctors told her that she had to wait for the baby to die in her womb. “I couldn’t even put my seat belt on because I felt a flame, a burning, every time he touched me. I was in a lot of pain, “he says. His body ached and his soul ached as well. I could not sleep. He had nightmares, he dreamed of blood. She longed to be a mother for the first time, but her life was in danger and the very idea that her son would die inside her haunted her. The consultations with the psychiatrist, where they confirmed that he suffered from depression, were not enough either. Despite the urgency, she was never able to access a therapeutic abortion. “A pregnancy like that stops you for life. I was an athlete and after that I was for many years without even being able to climb some stairs. It cannot be that the laws are above the lives of women ”, she laments.
This access barrier means that part of the demand for pregnancy terminations is diverted towards unsafe procedures. According to the estimates of a study published in the scientific journal The Lancet In 2018, the proportion of abortions that can be considered safe drops dramatically depending on the degree of restriction of the legislation in force in each country: those in Central America have the worst rates in the entire American region. Only 18% of procedures can be considered completely safe there, compared to 99% in the US and Canada.
Access to safe abortion saves lives and the fight to achieve it has reached the inter-American human rights system with the case of Aurora, but also with that of Beatriz, a 22-year-old Salvadoran woman with lupus, whom the doctors denied a therapeutic abortion for fear of being incarcerated, even though her life was in danger. Beatriz was physically and psychologically tortured. She had to carry a pregnancy that was not viable, her baby died five hours after birth, and she had complications with her health. He passed away in 2017 awaiting justice.
The story of the Ecuadorian Norma is another that has reached the highest American court of human rights. At age 12, she was raped by her biological father and became pregnant. His brother filed a criminal complaint against the aggressor, but the authorities did nothing, nor could he access an abortion. Desperate, Norma attempted suicide and despite the obvious effects the pregnancy had on her mental health, she received no psychological support. Norma has not received justice for the crimes committed against her, nor for the human rights violations she suffered. Aura, Beatriz and Norma are fictitious names. Facing abortion is still dangerous in a region where it is associated with crime.
Meanwhile, maternal mortality is significantly higher in those countries of the region that have greater restrictions on abortion. This relationship points to both a direct cause (the use of unsafe procedures referred to above) and a context descriptor: systems in which abortion is decriminalized tend to consider it from a comprehensive perspective of maternal and child health that brings better conditions health services for women in general (access to contraceptives, delivery care, etc.).
Latin America calls for the decriminalization of abortion, while women risk unsafe procedures. Colombia is the country that is closest to following the trail of hope of Argentina and Mexico, but although at least four of the nine magistrates of the Constitutional Court are in favor of protecting women by declaring abortion as a crime unconstitutional, if the decision In the end, leaving the legislation in the hands of Congress will be, for now, just a symbolic achievement. In the hands of senators whose priority is not women, the step may take time to materialize.
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