“Niñas, No Madres”: Argentina Sets a Precedent for Sexual and Reproductive Rights

I N T E R N A T I O N A L – A R G E N T I N A

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The dark history of anti-abortion laws across South America The nearly century-old “exceptions model” largely banned abortion in Argentina. The only exceptions, under Section 86 of the 1921 criminal code, were when a pregnancy put the life or health of a woman or girl on the line, or when it resulted from rape. In all other circumstances, abortion would be illegal and punishable with up to 15 years in prison. The sentence for self-inducing abortion or consenting to have an abortion was up to four years.Pro-choice movements: Coming out of the shadows What precedents can the revolutionary new law set?“Argentina has made an emblematic step forward in defending the rights of women, girls, and people with reproductive capacity. It has also sent a strong message of hope to our entire continent: that we can change course against the criminalisation of abortion and against clandestine abortions, which pose serious risks to the health and lives of millions of people.”

Ayaan Shams, Fairuz Shams

The start of 2021 was a paramount cause for celebration for Argentina as a revolutionary bill uprooting a decades-long ban criminalising abortion was passed. While the people who struggled for this through thick and thin celebrated with colours of green, a dissemination of why such a crucial example of human rights — democracy and freedom of choice, like abortion, were restricted — is in order.

It would come as a surprise to many that such a conservative and Catholic region as Argentina would become the largest Latin American country to legalise abortion. Argentina’s senate approved this historic law change by 38 votes in favour to 29 against — the announcement of which came in the early hours of 30 December, 2020.

The bill vitalised the availability of legal and unbiased abortions until the fourteenth week of pregnancy without any special circumstances. Abortion after that period would be legal if and only if the life of the pregnant woman is on the line or if the pregnancy was a result of rape. Medical practitioners would be held accountable and penalised if they posed any obstacles or mistreatments in cases of legal abortion.

Elated pro-choice campaigners who had been keeping vigil outside Buenos Aires’s neoclassical congressional palace erupted in celebration as the result was announced. However, the road to reaching the ultimatum was all but an easy one, combatting colonial-era laws, religious conservatism, and political reluctance.

The dark history of anti-abortion laws across South America

The archaic and restrictive former laws regarding abortion in Argentina and surrounding countries originated from the beginning of modern civilisation in Latin America, when the previously untapped land became colonised by the Spanish. The sway held by the Roman Catholic Church and evangelical churches in Spain, at that time, made its way to Spain’s colonies, including Argentina. Along with religion and devout religiousness came conservative and traditionalist practices and outlooks. As people with such national outlooks formed a government for the colony of Argentina, the words and teachings of their beloved Church took precedence in matters of governance and legislature.

This attitude became most prevalent regarding subjects judged taboo by the teachings of the evangelical churches, chief among which was abortion. As a result, laws regarding these ‘taboo’ subjects were garbled and enforced in appalling fashion, which, in the case of abortion, resulted in it being criminalised and penalised heavily. And even after Argentina became decolonised, the influence of the Church’s teachings remained among the government and a large percentage of the population. This caused a major restriction for change of laws and social outlook towards abortion in Argentina until very recent times, with many people treating it akin to murder.

The nearly century-old “exceptions model” largely banned abortion in Argentina. The only exceptions, under Section 86 of the 1921 criminal code, were when a pregnancy put the life or health of a woman or girl on the line, or when it resulted from rape. In all other circumstances, abortion would be illegal and punishable with up to 15 years in prison. The sentence for self-inducing abortion or consenting to have an abortion was up to four years.

The Human Rights Watch documented cases of women and girls whose situations fell within the legal “exceptions” but who faced insurmountable barriers to access abortion and post-abortion care. Obstacles included a lack of public information about the scope of legal grounds for abortion, health facilities imposing arbitrary hurdles or waiting periods, health officials illegally and illicitly requiring production of police reports or court orders to proceed with the procedure under the exception of rape, and lack of access to safe and legal methods or lack of nearby health facilities providing abortion services. The collective acknowledgement of conscientious objection by medical practitioners also created severe burdens or delay.

Fortunately enough, the first few years of the twenty-first century have been able to show noticeable developments owing to the tireless efforts of women’s rights activists. Even though abortion is illegal in almost all countries in the region except Cuba, most countries allow criminal penalties to be waived or lowered in specific circumstances, including — most often — where the life or health of the pregnant woman is in danger, or where the pregnancy is the result of rape or incest. In several countries in the region, law and policy-makers, under heavy pressure from women’s rights activists, have amended restrictive abortion laws and put procedures in place that are meant to alleviate the disastrous health consequences of unsafe abortions.

In Uruguay, a reproductive health bill, which included several positive steps on provision of contraceptives and related information, was approved by the House of Representatives in 2002 and lost in the Senate by only four votes in 2004. In Brazil, the government set up a committee in 2005 to propose legal reform related to abortion, and the Health Ministry passed a resolution meant to facilitate women’s access to safe and decriminalised abortion when their pregnancies are the result of rape.

Pro-choice movements: Coming out of the shadows

Pro-choice movements in Argentina can be traced back to early 2003, during a workshop which was held to discuss the idea of launching a national campaign for the right to choose (Strategies for Abortion Rights). 2004 saw various feminist groups taking the initiative to organise a conference in the University of Buenos Aires to implement the proposals from the 2003 workshop. The symbolic “green handkerchief” was adopted as the campaign’s signature emblem.

The campaign had a national reach, organised into regions. And, at present, contains 305 organisations. One of its first actions was the presentation of 100,000 signatures to the Chamber of Deputies back in 2005, where a turnout of 15,000 people marched in unison.

It was after the 2015 #NiUnaMenos march that pro-choice campaigners realised the fight against femicide could also encompass demands for access to legal abortion. Mid-2015 saw over 300,000 women flooding the streets of Buenos Aires, demanding governments to put an end to femicide and gender violence. The mobilisations spread to other Latin American countries accordingly. In 2018, the slogan was “Without Legal Abortion There Is No Ni Una Menos; No to the Macri-IMF Pact”.

However, the pro-choice campaigners saw their hopes of change dashed in 2018 when the senate, under pressure from the Catholic church, rejected the bill for decriminalising abortion.

“When you talk about abortion, you talk about inequality, about the desire for motherhood, about pleasure, you question all the gender roles — something that is very distinctive of younger generations.”

– Victoria Freire, a sociologist in charge of the Observatory on Gender and Public Policy

In 2019, the final glimmer of hope was seen when current Argentine President Alberto Fernández was sworn into office. The liberal leader promised an advocacy of human rights, female rights, LGBTQIA+ rights, and more. He held a majority in the lower house, pushing the bill into voting. This sweet result of almost 20 years of campaigning, rage, and efforts would set an example for countries throughout the region.

What precedents can the revolutionary new law set?

Latin America has had a long and bleak history with securing solid ground for its people, especially for women. Only three countries until now have permitted elective abortion, with Argentina being the third. However, this bill regarding abortion laws passing in Argentina holds unparalleled significance in terms of social development and securing human rights precisely due to Argentina holding a highly conservative outlook towards abortion until recently.

The proper magnitude of this bill’s importance for Argentina and the greater Americas can be judged from the words of Erika Guevara-Rosas, Americas director at Amnesty International,

“Argentina has made an emblematic step forward in defending the rights of women, girls, and people with reproductive capacity. It has also sent a strong message of hope to our entire continent: that we can change course against the criminalisation of abortion and against clandestine abortions, which pose serious risks to the health and lives of millions of people.”

With this monumental repeal of antiquated legislature, Argentina became a leading example for the rest of Latin America to follow in regards to providing proper rights for their female citizens and live proof that people and countries can change for the better, regardless of opposition.

Gender and sexual dissidence is a phenomenon that crosses the people as a whole, hand in hand with a global feminist wave that grows against a patriarchal capitalism that has nothing left to offer the Argentine people. Born out of a series of rights achieved through multiple forms of struggle that the entire community developed over the years, the pro-choice and inherent rights movement was the embodiment of the radicalisation of an anti-systemic struggle.

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