By Alma Beltrán y Puga
As the Supreme Court of the United States moves closer to overturning Roe and Casey, looking south to Latin America highlights the egregiousness of these developments.
Recently, Mexico and Colombia have provided landmark decisions that recognize a woman’s freedom to choose over her body is a fundamental right. Both rulings use strong arguments to frame abortion as protected under a constitutional umbrella that enshrines the right to equality and non-discrimination, and to health and reproductive freedom, as fundamental liberties.
As a women’s rights activist who entered the feminist movement very young (when I was 22 years old), I can attest it has been a gradual, collective process of feminist organizing and strategic legal mobilization targeting legislative bodies and courts to embrace reproductive rights. Feminist legal mobilization to advance sexual and reproductive rights interacts with a Catholic culture that fervently defends the fetus’ life as sacred and worthy of State protection. Thus, a woman’s right to choose is always presented in opposition to the right to life of a potential human being.
This historic clash of interests has made abortion a difficult topic to discuss with legislators, policy makers, and judges. However, it is only by taking religious arguments seriously that the feminist movement has advanced in introducing abortion as a relevant legal topic in the constitutional conversation of courts and congresses. I was born and raised as a Catholic woman in Mexico. I went to Marymount School in Cuernavaca, a small town near Mexico City, where we had to watch The Silent Scream for ethics class. This video depicts a well-formed embryo inside the womb “silently crying” before its life is taken with medical assistance outside. Or so I can remember. I have never watched it again. But it made a big impression in my ideas of an abortion when I was a teenager.
Since then, I have grown up to understand that the life of the fetus does matter. But it cannot be understood as an autonomous life — or personhood — separate from the woman’s body. She is the ultimate and most important subject of the pregnancy, which is understood as a gestational process where the life-in-progress develops within the woman’s uterus. Therefore, prenatal life is subordinate to the protection of the fundamental rights of women, as the Inter-American Court of Human Rights has considered in Artavia Murillo vs. Costa Rica (2012). This notion — of prenatal life as an incremental value — also drove one of the main arguments of the Roe vs. Wade decision in 1973. However, it cannot be seen as an absolute right, but should be balanced with women’s constitutional rights.
Considering the three rulings issued in September 2021 regarding abortion, the right to life from the moment of conception, and conscientious objection, the Supreme Court of Mexico now upholds the most robust case-law on reproductive health issues of the region. The Mexican Supreme Court not only stated reproductive freedom is a constitutional right that belongs to women and non-binary persons, but also reaffirmed that criminal law should not be the guide for public health policies regarding abortion. On the contrary, if abortion is part of a woman’s reproductive freedom, then the State should necessarily guarantee legal and safe services for people facing unwanted pregnancies. Moreover, a fetus cannot be considered a legal person until it is born, and doctors who are conscientious objectors cannot refuse to perform the procedure if the woman’s life or health is at stake. Finally, the Court ordered the Federal Congress of Mexico to legislate this urgent issue, considering abortion as a public health service.
In similar terms, in February 2022, the Constitutional Court of Colombia considered abortion should not be a crime during the first 24 weeks of pregnancy. Although the decision has not been published, the Court argued in an official press statement that criminalizing abortion was against the constitutional rights to health, equality and non-discrimination, and dignity of women. Therefore, the Court ordered the government and Congress to craft comprehensive laws and public policies to provide sexual and reproductive health services in the country, including abortion.
These judicial triumphs cannot be understood without knowledge of the feminist mobilization behind them. In both countries, women’s rights movements have formed strong networks of feminist organizations. In Mexico, the National Reproductive Rights Alliance (ANDAR) facilitated the decriminalization of abortion in Mexico City’s Legislature in 2007. Since then, the movement has advanced the legal framework through amparos and constitutional actions filed (indirectly by liberal politicians) before the Supreme Court. Besides Mexico City, six other states have decriminalized abortion in the first trimester (12 weeks): Baja California, Oaxaca, Veracruz, Hidalgo, Colima and Sinaloa (13 weeks). Coahuila is expected to follow this path in compliance with the Supreme Court’s recent abortion ruling.
In Colombia, the national feminist network called Causa Justa filed the constitutional action to decriminalize abortion in 2020, which resulted in the present ruling. They capitalized on the collective mobilization previously done by Women’s Link Worldwide (also part of Causa Justa alliance) with policymakers and judges to decriminalize abortion in 2006 in cases of sexual violence, fetal malformations, and for health reasons. Overall, the feminist movement has promoted a constant public debate around reproductive rights through media, law reform, and litigation, which has had a favorable impact on young women, who have taken to the streets to call for abortion, as well as on justices of constitutional courts and liberal legislators, who have voted in favor of reproductive freedom.
An informed and democratic conversation regarding abortion has been a fundamental part of feminist mobilization in Latin America. Without it, we would not have the laws and rulings recognizing women’s right to choose today. As opposed to silent screams, feminist shouts for legal and accessible abortion have cut through legal and political reasoning. This feminist mobilization can inform the women’s rights movement in the U.S., influence strategies to promote better access to abortion, and respond to the current conservative judicial backlash.