by Jordi Díez and Alba Ruibal
In: PS: Political Science & Politics, Cambridge University Press. 25 November 2024. Open access.
DOI: https://doi.org/10.1017/S1049096524000660
Abstract
Latin America historically has had some of the strictest abortion laws in the world, making unsafe procedures a main cause of mortality among women and girls. However, in the context of the Green Wave, three countries recently have amply decriminalized access to abortion: Mexico (2021, 2023), Colombia (2022), and Argentina (2020) (Uruguay did so in 2012). The recent wave of decriminalization is the culmination of larger, historical processes that involved the gradual judicialization of reproductive rights in the region. Courts have been a central part of the story. In these three cases, arguments advanced by state and nonstate actors in favor of decriminalization significantly built on jurisprudence developed over many years. The process of abortion decriminalization has been partly a tale of gradual judicialization.
This process is partly explained by the broader judicialization of politics that has taken root in some Latin American countries during the past 25 years. In Mexico, Colombia, and Argentina, high courts—which, in comparative historical terms, enjoy important degrees of judicial independence—have assumed policy-making authority as they have asserted strong constitutional review powers. This process gradually has opened the judicial door to demands from nonstate actors, including the expansion of reproductive justice. Given the contentiousness of these issues and the timidity with which elected officials have approached abortion—including leftist representatives— the courts have responded to feminist demands with gradual decriminalization. The judicialization of abortion politics also has included the adoption of erga omnes principles (i.e. court rulings with universal applicability) by the high courts. This means that—as the last arbiters of contentious issues and regardless of systems of government (i.e., unitary versus federal)—their rulings have expanded democratic citizenship for all women and girls and, more recently, pregnant persons in general. These countries warrant attention because they have completely decriminalized abortion during the past four years. The high courts have played a significant role.
Mexico
MEXICO In 2021, the Mexican Supreme Court became the first court in Latin America to declare that the criminalization of abortion during all the stages of pregnancy was unconstitutional (AI 148–2017). Responding to a constitutional challenge to Coahuila State’s Criminal Code, the Court ruled that three main activities were constitutional: first-trimester IVE (i.e., the Spanish acronym for “voluntary interruption of pregnancy”); its support by specialists (including the provision of medicines); and IVE as a result of rape beyond 12 weeks of pregnancy. It further established that no federal judge could prosecute gestating people in those three circumstances. Expanding on that decision and motivated by an amparo (i.e., rights suit protection) filed by Grupo de Información en Reproducción Elegida, the Court ruled in September 2023 that the criminalization of abortion in the Federal Criminal Code is unconstitutional 267/2023. The Court relied on more than two decades of its own jurisprudence to justify these decisions….
Colombia
Colombia’s Constitutional Court decriminalized abortion within 24 weeks of pregnancy in its 2022 historic (5–4) ruling (C-055-2022). This decision was not entirely unexpected because it expanded on the Court’s jurisprudence developed through a series of rulings handed down over 25 years…. Although historically Colombia’s Criminal Code had exceptions for access to abortion, they were eliminated in 1980. However, the Constitutional Court slowly read national and international law more flexibly and gradually allowed access to abortion. In a 1997 ruling (C-013-97), the Court maintained its previous position that abortion was criminally punishable (C-133/94) but introduced the idea of the appropriateness of graduated sentencing on proportionate and reasonable grounds. In 2001, the Court ruled (C-647-01) that the waiving of penalties by judges on certain exceptional circumstances was constitutional, cementing the idea of graduated sentencing and proportionality. It is important to note that in a concurring opinion in the same ruling, four justices introduced the idea of the need to balance rights, which also expanded the 1997 ruling. These justices argued that although the Constitution protects the right to life, Congress cannot go “to the other extreme” of ignoring women’s rights, including the right to life, integrity, health, equality, human dignity, personal autonomy, privacy, and freedom of conscience. As a result, in the concurring opinion, the legislature’s criminal policy-making ability was constrained by the need to balance these competing interests and to guarantee the fundamental rights of all parties. The weighing of rights that undergirded this argumentation was part of an increased reliance on proportionality analysis by some justices at the Constitutional Court, serving as the basis for the historic 2006 decision (C-355-06)—the first to decriminalize abortion in Latin America.
Argentina
Argentina’s Congress approved a bill in December 2020 that legalized abortion within 14 weeks of pregnancy and kept existing indications for risks to health and rape beyond that timeframe. Congress also enacted legislation—colloquially known as the “1,000-Day Plan”—that provides comprehensive health care and social assistance to pregnant individuals and those with small children. This historic policy change built on years of effort by state and nonstate actors to liberalize access to abortion, which partially relied on Supreme Court jurisprudence to craft arguments that have been effective in decriminalization. Advanced at the time, Argentina first banned abortion in its 1921 Criminal Code, making the practice punishable by up to four years in prison in all stages of pregnancy except when the life or health of the person is at risk and when the pregnancy is the result of “rape or indecent assault against a mentally handicapped or mentally ill woman” (Article 86). The Article was not substantially reformed during the next nine decades, and the indications it included for lawful abortions were rarely implemented until the 2000s. The first serious legal test to the Criminal Code’s limits and constitutionality occurred… in 2006….
Conclusion
The gradual development of Latin American jurisprudence on abortion rights allowed courts to slowly carve out a decisional space and establish themselves as legitimate actors to rule on one of the most controversial issues in Latin America. It also allowed for the incorporation of new human-rights standards into the most recent decisions, taking advantage of a new context shaped by the Green Wave. When Latin American courts began to decide on abortion in the 2000s, they did so within a limited scope by upholding legislative changes (Mexico), liberalizing the exceptions under which abortion should not be criminalized (Colombia), and interpreting the existing law in a more progressive way (Argentina). The courts’ rationales were constrained; whereas they did address women’s rights, they were not grounded on autonomy or reproductive freedom but instead on other constitutional rights and public health considerations.
Recent rulings drew on frameworks advanced in previous jurisprudence while also expanding the scope of their decisions to incorporate broader declarations on the unconstitutionality of abortion criminalization, as well as developing bolder rationales based on reproductive freedom. The recent decisions by the Colombian and Mexican Courts were framed for the first time as a matter of reproductive self-determination, drawing on long-standing constitutional provisions on the freedom to decide on the number and spacing of children. In both cases, the subjects of rights are gestating persons instead of only women (as in the case of Argentina’s reform). These common developments address the progressive incorporation of women’s and gender-expression rights by Latin American courts that rather timidly had begun deciding on the abortion issue two decades ago.