The State of Reproductive Rights in Latin America-Ripples and Rollbacks

Amidst the looming threat of the overturning of Roe v. Wade in the United States, and state trigger laws in place, we look to Latin America’s Marea Verde, or Green Wave, movement for hope of an imminent new age of legal protections over one’s bodily right to choose.

Amelia Winn |amelia.winn@yale.edu and Paola Santos | paola.santos@yale.edu

This article aims to highlight recent Colombian, Mexican and Argentinian Supreme Court Cases and social movements decriminalizing the right to abortion, while contrasting this massive reform with women’s continued lack of legal bodily autonomy in the majority of Latin America. It begins to examine the dark history of reproductive rights abuses in Latin America, the social movements that spurred these recent expansions of rights, and future implications for surrounding Latin American countries with restricted right to abortion.



The Green Wave: Wins in Argentina, Mexico and Colombia

The influential and dynamic Green Wave movement originated in Argentina, getting its name from the green scarves worn by women as they took to the streets to fight for the right to safe and legal abortion in 2018. Their resistance echoed that of the white-scarved Grandmothers and Mothers of the Plaza de Mayo during the state-sponsored terrorism of the Dirty War in 1976. They wore white to protest the murder of their loved ones, particularly their children. Today, the symbolic green marker caught on, with women and supporters of the movement across the globe wearing scarves to represent their cause. In addition to encouraging legislative changes, the movement aims to destigmatize abortion, considering the consequences for people forced to carry a child to term when they have reason not to because of legal, social, or cultural barriers. Research from the Guttmacher Institute, which aims to advance sexual and reproductive health, found in 2020 that when abortion access is legal and widespread, abortion rates decrease. The movement had a recent win in December 2020, during which the Argentinian Supreme Court legalized abortion in the 14th week, making it the largest country in Latin America to do so. The decision also marks the defeat of the Catholic Church’s ubiquiotous influence in the country, “coupled with the stigma around abortion nestled in the identification of womanhood with motherhood,” as Cora Fernandez Anderson, Assistant Professor of Comparative Politics at Mount Holyoke, wrote in Ms. Magazine.

Additionally, in September 2021, Mexico's Supreme Court made a landmark ruling decriminalizing abortion. Several states in Mexico permit abortions up to 14 weeks. The court also ruled the Sinaloan Constitution’s protection of life from the moment of conception invalid. In both rulings, the court prioritized and empowered pregnant women’s reproductive rights.

Recently, the Causa Justa Movement successfully fought to expand abortion rights in the steadfastly Catholic and conservative country of Colombia. The Green Wave’s first successful legal action took place in 2006 when Women’s Link Worldwide filed a petition with the Colombian Constitutional Court arguing the law declaring abortion as a crime under any circumstance should be unconstitutional, as it violated women’s fundamental rights. The emerging movement’s growing momentum secured a favorable court decision on the basis of this violation. The court partially decriminalized abortion, in cases of rape, risk of maternal life or health, and a nonviable pregnancy. In the ruling, the court declared a state’s responsibility to protect fetal life could not achieve that by treating women as “a reproductive instrument for the human race.”

Prior to 2006, Colombia had an absolute ban on abortion, making it one of the most reproductively restrictive countries in the world. The Center for Reproductive Rights estimates about a third of women having unsafe abortions in Colombia will undergo complications necessitating medical attention. Yet, historically, one-fifth of those women will not receive the medical attention they require due to the stigma and fear of criminalized abortion. Even more, of these women who face the tangible repercussions of banned abortion, most are low income or from rural areas. A staggering 97% of almost 5,000 cases on criminalized abortion from a period of 20 years were from women and girls living in rural areas, as reported by the Report on the Judicialization of Abortion in Colombia of the Attorney General’s Office. This past February, Colombia partially legalized abortion. The Constitutional Court ruled people will be able to seek an abortion during the first 24 weeks of gestation, with special exceptions on the grounds of health, viablity, and rape. This decision makes Colombia the eighth country in Latin America and the Caribbean to decriminalize abortion during the beginning of pregnancy. One of the lawsuits that helped spur this legal breakthrough was filed by Causa Justa, which aimed to eliminate the criminalization of abortion for healthcare providers, women, girls, and other individuals seeking abortion care, as well as reducing barriers to this type of healthcare. Although Colombia’s court has still not decriminalized abortion entirely, this law will begin to break down stigmas, expand access to abortion information and sex education, reduce deaths from unsafe abortions, and dignify those making this choice.

With Colombia’s latest ruling, now three of the four most populous countries in Latin America have expanded access to abortion.


Latin American Rollbacks:

Despite these monumental steps forward, other countries in Latin America face setbacks. Where Colombia was once the country with some of the most stringent abortion laws in Latin America, Guatemala is taking its place. Guatemala recently passed a bill putting women who receive abortions in prison for up to 10 years. In fact, this measure is, in some ways, a response to the broadening access to abortion in Latin America. Guatemalan congressman Armando Castillo is quoted in the New York Times, describing his backing of this bill as spurred on by a desire to prevent the trend of broadening abortion access from reaching his country.

Although Guatemala previously required prison time for women who got abortions with exceptions for cases in which their life was at risk, the new bill is even more restrictive. It requires doctors who perform abortions to get another physician to determine the procedure medically necessary—another hurdle for those living in areas where medical professionals are scarce. Doctors who do not meet this requirement can face up to 12 years in prison for performing the procedure. For Guatemala’s President Alejandro Giammattei, it is suspected that this bill serves as an appeal to his conservative base at home and in the United States during a time when he is under fire for suspected corruption and bribery.

Similarly, out of protest to Argentina’s emerging reforms, the Honduran Congress reenforced their country’s staunch conservatism by altering their constitution to prohibit abortion on all accounts. El Salvadorean President Nayib Bukele also banned changes to abortion laws in the country’s constitution. His draconian policies encouraged Salvadorean courts to sentence women to up to 40 years in prison for attempting to access an illegal abortion, which women often seek after miscarriages and stillbirths.

Still, activists are hopeful the expansion of abortion rights will spark broader outcry and action against gender violence in all its forms, particularly femicides, in Latin America. The #NiUnaMenos (Not One Woman Less) movement’s adoption of green scarves in 2018 is a physical representation of this solidarity.

A History of Eugenics and Reproductive Restrictions in Latin America:

Despite the undeniable presence of cultural influences stemming from Latin America’s history of colonization by European countries, as well as the role the United States has played, Latin America has its own history of eugenics in family planning movements. Emilie Egger, a PhD candidate in Yale’s Department of History and Public Health, spoke on these specific historical trends that has been the focus of her research.

Egger differentiates between the Malthusian eugenics movement prevalent in the United States and Europe versus the Lamarckian eugenics movement that was rampant in Latin America. The Lamarckian branch of eugenics was founded by Jean-Baptiste Lamarck, a French scientist who theorized that if you changed people’s behaviors and environments, you could change their genes over time. This prejudiced thinking incentivized government population control tactics like sterilization, and went so far as to blame alcoholism, criminality, and diseases like tuberculosis, syphilis and other mental health conditions on racial genetics, rather than to treat them as long-standing social issues. The government sorting of various racial groups and ethnicities of the Latin American population into desirables or undesirables based on these conditions fundamentally boiled down to the continuation of a repressive reproductive governance rooted in control, including that of capital. Although it was rarely explicitly stated, the mindset was one that determined who the state was and was not willing to invest in, “[of] bring[ing] these families into capitalism in a very specific way.”

Egger explained that eugenic practices are still prevalent in Latin America today, with rural and/or indigenous populations facing the brunt of disparities in access to resources and education, as well as the repercussions of any restrictions of abortion or sterilization practices. The time between 1995-1998 marked a widespread family planning campaign in Peru, which ultimately resulted in the sterilization of over 250,000 indigenous women, largely without full consent. Much of this ambiguity took shape in consent forms written in Spanish, which these women were not necessarily proficient in. In addition, they were often told to sign while they were in labor, further obstructing their decision making. “[It was] hard to get a huge idea on who consented to what,” Egger clarified. The general consensus, however, was that these women had little opportunity to have an informed say in these decisions.

Egger noted that “[t]his campaign was presented to the Peruvian public and the whole world as a feminist campaign.” In fact, the United Nations conference at which the Peruvian president at the time, Alberto Fujimori, announced that sterilization was legal was the very same one in which Hillary Clinton famously coined the statement, “Women’s rights are human rights.” In other words, President Fujimori’s announcement was in an era that celebrated women’s reproductive autonomy, and expanding liberties. So, when what Egger characterized as the “coercive campaign that targeted indigenous women” commenced, it was seen by the world stage as an expansion of rights, rather than an attempt to reshape the population.

When asked about how these trends specific to Egger’s research in Peru applied across Latin America, she emphasized that the histories of reproductive rights were very specific to the country. In Argentina, for example, the popularized image of a white-dominant, European-adjacent nation was created by the physical removal of indigenous populations and the exclusive favoring of white European immigrants. In Mexico, the culture turned towards embracing their mestizo heritage, seeing themselves as a kind of “cosmic race.” The claim they were all an indistinguishable mix of European and indigenous blood fueled the myth of racism’s impossibility in the region, therefore leaving systemic inequalities unaddressed.


The Future Of The Movement:


There have been a considerable number of indigenous-led movements in Latin America, many of which center around the idea that their indigenous identity and womanhood are inextricably and non-negotiably linked. Acts of resistance, and indigenous women’s ongoing fight for reproductive liberties, despite prevalent racial animus making these campaigns more palatable in the public eye, further embrace feminist historian Laura Briggs’ saying that “all politics are reproductive politics.”

“Backlash will always follow,” Egger remarked. In this unavoidable tension between growing momentum in the advancement of reproductive justice and conservative backlash, new strategies will have to be employed in addressing these age-old patterns. “Words change, states are always interested in eugenics,” she went on to say about the persistence and resurgence of conservative movements and policies which uphold this framework of controlling reproductive autonomy as a means of controlling economy. The return of the fascist right in the past few years is not unique to the United States—in Latin America, organizers will have to find new strategies to combat this unexpected return of these antiquated ideologies. Writers' Reflection:

Through our research, we hoped to further understand whether these incidents of expanded rights signal a soon-to-be rippling overhaul of long-standing reproductive rights restrictions in Latin America. If not, we wanted to discuss what specific conditions allowed these countries to make these progressive reforms and if those are likely to be replicated. We are so grateful to have had this opportunity to explore such a complex history, and gain a better understanding of the trends that have contributed to the reproductive freedoms of our Latin American roots.