ECUADOR – Decriminalisation with limitations: Ecuador’s new rape abortion law 

Top image: Cristina Cachaguay, Presidente, Mujeres por el Cambio, 9 December 2021

by Manuela Lavinas Picq

Sexuality Policy Watch, 24 February 2022

On 17 February 2022, Ecuador approved a law on voluntary termination of pregnancy in cases of rape. This new law was a great victory in a deeply conservative country that until recently criminalised all abortions (except in cases of rape of mentally handicapped persons and risk to the life of the woman). But this new law also sparked protest from women’s groups, who staged artistic protest performances outside the Assembly while the vote was being taken, shouting the Ecuadorian version of the Chilean feminist anthem by Las Tesis:

“The Assembly is a judge/
that does not listen to our voices/
and our punishment is/
to give birth to the rapist’s child”

This law represents a victory for allowing the right to abortion due to rape, even allowing survivors to avoid police procedures, but the advocates of decriminalisation contested certain aspects that will exclude some women, especially the most vulnerable. Especially because of the deadlines. Why so much disappointment? On 28 April 2021, after years of feminist struggle and seven lawsuits on the unconstitutionality of the previous law, filed by several women’s organisations and the Ombudsman’s Office, the Constitutional Court of Ecuador issued an historic ruling declaring the decriminalisation of abortion in cases of rape, and entrusting the National Assembly with the creation of a law that regulates abortion on grounds of rape, applying the highest human rights standards.

The new law has its strengths, but its weakness is in the time limits, which will serve to restrict access to the very same right it seeks to guarantee. What is most worrisome is that these time limits are about to be reduced even further.

When the Constitutional Court issued its ruling decriminalising abortion in cases of rape in April 2021, the recently elected and not yet inaugurated president Guillermo Lasso, a banker and member of Opus Dei, declared his “total respect” for the Court’s ruling and promised to respect democracy and the “separation of powers” despite his “different beliefs”. But months later, Lasso announced he would veto the law, ignoring the Constitutional Court’s authority and using his pro-life activist wife as a channel to express anti-rights ideology.

President Lasso began to exert influence and pressure, in part through various alliances, including with Guadalupe Llori, President of the Assembly, from the Pachakutik Plurinational Unity Movement, an indigenous party. First, the Legislative Assembly delayed debate on the bill well beyond the six month limit set by the Court. Second, allied Assembly members such as Esteban Torres of the Social Christian Party were active against the bill. Ironically, it was Pachakutik Assemblyman Ricardo Vanegas who tabled a second bill, so regressive and against women that it contained 17 unconstitutional clauses, in order to prevent the majority bill from passing and allow his minority bill to come to a vote too.

The vote on the bill did not follow party lines. Among the 75 votes in favour were several Assembly members from the conservative right, including Lasso’s party, while a large part of the left voted against. Ironically, the two leftist parties that campaigned for a pro-abortion stance in the 2021 presidential campaign, Pachakutik and Izquierda Democrática, had several members who voted against or abstained. In the Correista party, the sister of former president Rafael Correa and head of the bloc Pierina Correa voted against, but gave her Assembly members a free vote, thus dividing the votes for and against.

The vote also did not follow gender lines, with almost half of the 41 votes against and 14 abstentions from women Assembly members, many elected by leftist parties. For example, pro-life legislator Sofia Espin, of the Justice Commission, voted against the law, invoking Article 45 of the Constitution which defends life from conception. Thus, two myths have fallen: the myth that the left advances policies in favour of women’s rights and the myth that women elected to political office automatically support policies that benefit women.

The power and pitfalls of the law
Virginia Gómez de La Torre, director of the Fundación Desafío, values the various feminist achievements that are in the law, in particular that rape survivors do not have to file a complaint to be able to access abortion for rape and that in the case of girls they are the ones who decide and can give their full consent without guardianship. Another important achievement was to define conscientious objection as an individual right of physicians, but not an institutional one, so that a physician can object, but not an institution or medical clinic. The law also takes into account sexual diversity, and recognises how intersectionality affects women’s lives, setting different deadlines for those under and over 18 years of age, rural and urban, mestizos and people of different nationalities.

The problem is in the time limits 
The initial report presented by the Ombudsman’s Office in 2021 did not include time limits; the bill debated in January 2022 considered a time limit of 22 weeks for persons under 18 years of age and different nationalities and 20 weeks for persons over 18 years of age in urban areas. When the bill came up for a vote on 17 February 2022, a proposed upper time limit of 16 weeks was reduced to 14 and then 12 weeks to obtain a favourable vote, which was critical to preventing the minority bill from passing. The agreed deadlines were reduced to 12 and 18 weeks respectively, due to the lack of political support in the Assembly.

Then came President Lasso’s intervention: the Assembly sends the law to the President, who has 30 days to approve or veto it, in whole or in part. Lasso has already reiterated his intention to veto the law arguing that it does not “respect life from conception”. Most likely he will seek to impose even lower deadlines, sending the law back for further debate in the Assembly, creating more back-and-forth between the legislature and the executive in the coming months.

In other words, not only does the law come with limits, it is not even guaranteed yet. For now, the decriminalisation of abortion for rape is law since the Court issued its ruling in April 2021; what is at stake is to create a new law to regulate this, which could become a long battle in itself.

Cristina Cachaguay, feminist and national president of Mujeres por el Cambio (Women for Change), confronted the legislators during her intervention in the Assembly, reminding them that in the last year alone, while they delayed the approval of the law, more than 3,000 girls ages 8–13 years old became mothers as a result of sexual violence, and 95% of the aggressors lived in their own homes (official data from the Ministry of Health). Abortion is not an option, she said, it is a decision made in circumstances of subjugation; that is why the Inter-American Court of Human Rights declared that forcing a raped woman to become a mother is torture.

Feminists have insisted that the requirements should be minimal, without the need for a police report so as not to re-victimise rape survivors; this was achieved. The issue of the time limit became the central axis of debate. The feminist organization Surkuna recognises the positive aspects of the law, but insists that the law imposes highly restrictive deadlines that will leave the most vulnerable without access. Based on the accompaniment they have provided to survivors in the last year, Surkuna estimates that the current time limits will prevent 43% of women over 18 years of age and about 80% of girls, adolescents and women of indigenous groups from accessing the right to voluntary termination of pregnancy in cases of rape.

It is outrageous but not surprising that the Assembly disrespects the dignity of girls, adolescents and women. What is surprising and serious is that the Assembly does not comply with the judgment of the Constitutional Court itself, which mandated the creation of a law in accordance with the highest human rights standards. Feminist lawyer Lolo Miño, one of the complainants before the Constitutional Court, expressed her disappointment on Twitter, adding that this was the “opportunity to set a precedent where we get officials who do not obey constitutional rulings to be dismissed”.

Despite the Assembly and President Lasso circling around the law, the Constitutional Court ruling remains in force and women have been able to access abortion for rape since it was decriminalised in April 2021. Women’s and feminist groups do not celebrate, but rather continue to fight, preparing for the possibility of filing more lawsuits in the Constitutional Court, in this case for non-compliance with the ruling. But the Constitutional Court of today is not the one of 2021; it has three new judges appointed by Lasso who are much more in line with the ideology of the president.

Achieving the constitutional ruling regulating abortion in cases of rape in Ecuador is an uphill battle, but the glass is half full. And if one thing is clear, it is that we will not go back to the underground.