Washington, DC, USA, May 5, 2022: people protest the leaked draft Supreme Court opinion overturning Roe v. Wade and the right to abortion

Reproductive Governance in a Post-Roe US: The Weaponization of Health Systems

By Alicia Ely Yamin

I was living and working in Peru in 2001, when Karen Noelia Llantoy discovered she was pregnant with an anencephalic fetus. Llantoy, a minor at the time, became profoundly depressed. Her own physician, a social worker, and a psychiatrist all concurred that she should have a termination, as anencephaly is a fatal brain defect that also poses an unnecessary risk to the mother’s physical health, and the pregnancy was having a severe impact on Llantoy’s mental health.

Though abortion is illegal in Peru, since 1924, the Peruvian Criminal Code (article 119) has had exceptions to its abortion restrictions, including to save the life of the pregnant woman, or to avoid serious and permanent damage to her health.

Nonetheless, the doctor who was to perform the surgery said approval from the hospital director was required.

The hospital director, Dr. Maximiliano Cárdenas Díaz, was the former ‘dean’ of the Peruvian Medical Association, and one of Peru’s leading scholars on medical ethics.

Cárdenas denied the application for therapeutic abortion. Though abortions were permitted at the time for exceptional health circumstances, “health” was not specifically defined to include mental health, nor were there standards defining “severe” and “permanent” risks.

Llantoy was forced to carry the baby to term and, in what can only be described as wanton cruelty, to breastfeed her for the four days after birth she survived.

This incident is instructive for what we will increasingly see in the United States. As others have written, including Rachel Rebouché and Paola Bergallo, the incompleteness of laws banning abortion — for example, what is a medical emergency, and who determines it? — means that women’s rights often will be subordinated to informal and background norms.

In Karen Llantoy’s case, there was incompleteness around both substance and process. That is, historically the process for obtaining a therapeutic abortion had been set out in the Peruvian General Health Law, and included getting two doctors’ recommendations. That procedure (which is absurdly onerous, but would have been fulfilled in her case) was removed in the amendments to the General Health Law in 1997. That left a legal vacuum in which providers who were admittedly caught in difficult situations — just as U.S. providers are now — substituted other ‘protocols’ in practice, such as the requirement of getting the hospital director’s consent.

The 1997 law also did two other relevant things: 1. It provided a very broad and vague provision for conscientious objection, without specifying exceptions; and 2. it made mandatory for providers to report to the police a woman who sought post-abortion care after a self-induced abortion or who sought a ‘criminal’ abortion.

Moreover, that 1997 law was passed as part of Alberto Fujimori’s neoliberal economic reform, which included the health sector. It reflected the move toward financing through systems of insurance promoted by the World Bank and Inter-American Development Bank, and decentralization of the health sector. It also coincided with sweeping changes in employment within the health sector; health workers were moved from being employees to operating on service contracts. Lack of labor protections (whether due to service contracts or lack of unionization) made health workers far more vulnerable to dismissal.

This was a toxic combination in Peru. The inherent incompleteness of formal abortion norms generated discretion tinged with religious values and a good dose of misogyny. In turn, background norms of hierarchical management in the health system and punitive productivity imperatives discouraged concern for patients by staff who were themselves in precarious situations. Sadly, we can expect to witness the same here in the United States in those cases where gestating persons cannot access medication abortion outside the formal health system.

The case of KL v Peru (abbreviating her first name for confidentiality at the time) eventually went to the United Nations Human Rights Committee, which found violations of her rights as a minor, cruel and inhuman treatment, a violation of private life, and a failure to provide meaningful remedies. Under international law, there is a clear trend toward liberalization of abortion based on the right to sexual and reproductive health, the right to life with dignity, and women’s and girls’ equality; the WHO’s 2022 guidelines on abortion also signal a consensus on the importance of providing abortions as part of health care. The reversal of Roe and Casey places the U.S. squarely at odds with this universal framework, as well as trends toward liberalization across a number of countries in the Americas, including Argentina, Colombia, and Mexico.

As Frédéric Mégret recently argued in ICON-Connect, it is crucial to elevate “the debate beyond some narrow and provincial originalist constitutional reading to a difficult conversation about how we should collectively understand what rights entail.” To mitigate the immediate harms that will flow from the Dobbs decision and the regressive legislation going into effect across many states, it is equally crucial to learn the brutal lessons from other countries where, for years, movements have been fighting the array of formal and informal abortion norms that weaponize health systems against women and girls.

Alicia Ely Yamin

Alicia Ely Yamin is the inaugural Senior Fellow in the Global Health and Rights Project (GHRP) at the Petrie-Flom Center, a collaboration with the Global Health Education and Learning Incubator (GHELI) at Harvard University. Yamin is currently a Senior Scholar in Residence at GHELI, an Adjunct Lecturer on Global Health and Population at the Harvard T. H. Chan School of Public Health, and a Department of Global Health and Social Medicine Affiliate at Harvard Medical School. Trained in both law and public health at Harvard, she has worked at the intersection of the two fields while living abroad in Latin America and East Africa. She is known globally for her pioneering scholarship and advocacy in relation to economic and social rights, sexual and reproductive health and rights, and the right to health.

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