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Legal mobilization for abortion rights, or the use of law and courts by feminist actors in their pursuit of abortion legalization, is a recent development in Latin America.
Its development is part of the turn towards law and the legal field by some sectors of social movements in the region that has taken place after the democratic transitions of the 1980s, and subsequent constitutional and judicial reforms carried out in most countries of the region mostly since the 1990s.
These reforms, carried out since the 1990s, expanded the legal opportunities for social actors, through the creation or empowerment of Constitutional Courts, the enactment of new fundamental rights and the incorporation of new legal remedies.
Counting on a new institutional environment and new instruments for the defense of rights, leftist forces and progressive actors that had formerly seen the legal system as an instrument of oppression, started reappraising the democratic rule of law and set out to consider the legal arena as a possible venue for acchieving their demands.
This process has involved changes in the strategies, framings and organizational structures of civil society actors in order to carry out new forms of collective action, including in particular legal mobilization and strategic litigation.
The abortion rights movement in Latin America developed with the rise of second-wave feminism in the region, which took place as part of democratization processes.
While sharing the historical distrust of the leftist camp towards the judicial field, the feminist movement had further difficulties in appealing to a system that it had reasons to consider as a site of masculine domination.
The patriarchal structure of norms, the male hegemony in the legal field, the absence of a gender perspective in law schools and the lack of resources for feminist legal mobilization had a deep impact on legal systems across the continent.
The weak organizational structure for legal mobilization was partly due to the long-standing lack of interaction between feminist actors and well-established human rights NGOs, which had historically not included gender as a mainstream perspective.
Latin America continues to be a region with some of the most restrictive abortion laws in the world. However, significant changes have taken place since the mid-2000s, and feminist demands have found resonance in Constitutional Courts.
In Latin America, Human Rights NGOs were originally linked to progressive sectors of the Catholic Church whose struggles against repressive governments and social injustice did not include gender injustices. This has started to change in recent years, as an incipient interaction between feminist actors and human rights organizations has started to develop.
Feminists first tried to pursue their claims through their most familiar avenues, namely political mobilization and legislative lobby. However, persistent obstacles to change abortion laws through the political process led some sectors of the region´s feminist movements to displace part of their efforts to the legal field.
Latin America continues to be a region with some of the most restrictive abortion laws in the World. However, some significant changes have taken place during the past years, and since the mid-2000s, feminist demands have found resonance in Constitutional Courts, which aligned for the first time in the region with abortion rights claims.
In 2006, the Colombian Constitution established that abortion should be legal in cases of rape, risk to the woman’s life or health and serious fetal malformation. In 2007, Mexico City’s Legislative Assembly legalized abortion at women´s demand during the first trimester.
An unprecedented process of public deliberation on this issue took place at the Supreme Court, which upheld the reform in 2008. In 2012, the Brazilian Supremo Tribunal Federal legalized abortion in cases of anencephaly.
In the same year, Argentina’s Supreme Court established that the rape exception introduced in 1921 covered all cases of rape. In 2012, the Uruguayan Congress decriminalized abortion during the first trimester. In 2017, the Chilean Congress ended the total ban on abortion and established exceptions based on risk to woman's life, rape and fetal malformations, and the Constitutional Court upheld the reform.
Also in 2017, Bolivia´s Congress introduced a broad range of circumstances under which abortion is legal, thereby expanding former exceptions. Feminist mobilization was a central factor in all these reform processes.
This article examines the recent interaction of feminist organizations with legal institutions around abortion rights claims, focusing on their impact on the organizational resources and framing processes of feminist social actors in four countries: Mexico, Colombia, Brazil and Argentina.
As for their role in abortion legal reform, feminist organizations in Mexico were central actors in the drafting of the legislation legalizing abortion in Mexico City in 2007, as well as in the public debate and legal defense of this law before the Supreme Court in 2008.
In the Brazilian case, a feminist organization presented the legal demand that led to the liberalization of abortion laws in cases of anencephaly to the Supremo Tribunal Federal in 2012. In Colombia, the Constitutional Court decision that liberalized the abortion law in 2006 had its origin in a feminist legal demand.
In Argentina, the work done by the feminist movement as well as by feminist lawyers in the field of abortion rights was decisive for the development of the case that motivated the 2012 Supreme Court´s decision, liberalizing the interpretation of abortion permissions under the rape exception in this country.
New resources and support structures for feminist legal mobilization
In the absence of their own resources or support structures for legal mobilization, and in order to break their historic exclusion from the legal field and strategic litigation, feminist actors throughout the four countries developed two main types of resource-building strategies at the beginning of their legal mobilization processes.
One of the models was the search for partners and allies in the legal profession. This was the initial strategy of the main organizations that led legal strategies for abortion rights in Mexico (GIRE, Information Group on Reproductive Choice, created in 1991) and Brazil (ANIS, Institute of Bioethics, Human Rights, and Gender, founded in 1999). These organizations contacted male lawyers with expertise in public interest litigation.
Colombia is the only case in which an organization was specifically created with the aim of pursuing strategic litigation in the field of abortion rights before the country´s Constitutional Court.
These lawyers translated feminist grievances into legal demands, although the main conceptions and positions on which the legal framing was grounded in both cases came from feminist actors.
Most notably, both the GIRE and ANIS were headed by leading anthropologists Marta Lamas and Debora Diniz, respectively, who have been key actors in envisioning legal strategies for abortion rights in their countries.
After this first stage, both organizations have developed their own resources for legal mobilization. They have trained and incorporated young feminist lawyers, and nowadays they are key legal actors in the feminist camp and in the area of public interest law in their respective countries.
The other strategic model, developed principally in Colombia, was the creation of a litigating organization (Women’s Link, Colombian chapter, created in 2005), which had no initial ties to the country´s feminist movement. Colombia is the only case in which an organization was specifically created with the aim of pursuing strategic litigation in the field of abortion rights before the country´s Constitutional Court.
Later on, its further litigation efforts, together with the work of the Mesa por la Vida y la Salud de las Mujeres, have been instrumental in pursuing the effective implementation of the 2006 Constitutional Court Decision.
On the most part, in Argentina, several organizations and networks linked to the legal defence of women´s rights, including abortion, were created (among them, Catholics for Choice, established in Argentina in 1987; the Latin American Justice and Gender Team, ELA, founded in 2003; the National Alliance of Lawyers for Women´s Human Rights, formed in 2012).
Although the movement, led by the National Campaign for the Right to Legal, Safe and Free Abortion (established in 2005, and gathering more than 300 organizations), has not yet developed a strategic litigation campaign on this issue before national courts, it has certainly changed the public discourse and the legal discussion on abortion, and in this way it has contributed to create the milieu for the 2012 Supreme Court Decision.
Finally, in the four countries under investigation, as part of the development of a new support structure for feminist legal mobilization, there has been a new approach between feminist organizations and human rights NGOs, partly as a result of donor requirements and most likely given the increasing prominence of feminist claims and mobilization across the region.
New discourses and cultural framings for the defense of abortion rights
With respect to their discursive strategies, or the way they frame the abortion rights question, developments in the four countries under investigation show an emerging trend in some sectors of the abortion rights movement: in their search to make advances in the legal field, they have moderated their discourses and claims.
Since the 1970s, the way feminist actors framed abortion rights in Latin America had been grounded on arguments based on public health and social justice, as well as on a radical discourse based on women’s right to their own bodies.
Conservative actors in Latin America have used the human rights framework for their defense of embryonic life, and they have been able to deter more wide-ranging reform efforts.
More recently (since the 1990s in Mexico, and in the other three countries mostly since the mid-2000s), the decision to pursue abortion rights through a legal framework has had a significant impact on feminist framings. Without abandoning previous arguments, the pursuit of legal mobilization has implied the moderation of feminist claims, and the incorporation of new framings of the abortion issue, which has taken different forms in each country.
In this process, feminists have accepted gradualist strategies, reform proposals based on trimester frameworks, and legal arguments that implied balancing women´s rights against the (gradual) protection of unborn life.
These strategies reflect the transformation of a radical discourse based on an absolute claim about the woman’s right to control her body into a perspective that articulates a series of constitutional and human rights, and that acknowledges the presence of the counter-movement in the field of abortion legal struggles.
In fact, conservative actors in Latin America have also used the human rights framework for their defense of embryonic life, and they have been able to deter more wide-ranging reform efforts, given the strength of the influence of religious institutions on the political sphere in most countries in the region.
The reframing processes carried out by feminist actors confirms the theory developed by constitutional scholar Reva Siegel, who argues that movements willing to influence legal change must frame their idiosyncratic demands into a discourse that appeals to public values and shared constitutional understandings, and that in this process, movements usually moderate their claims and rhetoric, especially when confronting a counter-movement.
The process of re-framing has been most notable in the Mexican case. Since the 1990s, GIRE worked under the premise that the abortion campaign should have a legal argument at its core. In this process of legal mobilization, this organization and its allies (in particular, the National Alliance for the Right to Decide, created in 2000) carried out a notable transformation of the feminist framing of the abortion question.
As part of this process, the strategy led by GIRE assumed that by framing the abortion issue in constitutional terms, they would need to confront the counter-movement´s claim about the right to life. In fact, one of the most remarkable and interesting aspects of this process was the feminists’ engagement with the discussion about the value of fetal life.
This move has been unique so far in the region, and arguably elsewhere. Through a multifaceted discourse grounded on philosophical, bioethical and legal arguments, they claimed that the abortion controversy was not a zero-sum game, and that in their struggle for first-trimester abortion legalization, their enemy was not the right to life.
However, their incorporation of the countermovement´s concerns did not imply characterizing women as victims of abortion, or abortion as a bankruptcy option, which could have led to proposing waiting periods and counseling measures.
In terms of legal reform proposals, they consciously conceptualized the need for gradualism, a trimester framework, and balancing of constitutional goods, as well as the regulation of conscientious objection. This move was remarkable, given that in other contexts, feminists, and the progressive camp in general, have been reluctant to address the substantive moral question posed by conservatives about the beginning of life and the personhood of the nasciturus.
Furthermore, as part of their discursive strategies, over the past decade abortion rights movements in Latin America have reframed the issue by renaming and re-categorizing it, in order to mitigate the negative reactions provoked by the stigmatization of abortion by conservative sectors in society.
In Brazil, the demand presented by ANIS (motivating the 2012 Decision by the Supremo Tribunal Federal) argued that the interruption of pregnancy in cases of anencephaly should not be considered as abortion, but as “therapeutic anticipation of birth”.
In Mexico, feminists and allies led by GIRE, as well as Mexico City’s legislative assembly adopted the term “legal interruption of pregnancy”, and argued that when it was carried out during the first trimester it was not an abortion. In Colombia, feminist legal advocates have termed it as “voluntary interruption of pregnancy”; and in Argentina the legislative project pursued by the National Campaign for the Right to Safe and Legal Abortion also calls it “voluntary termination of pregnancy”.
How to cite:
Rubial A.(2018) Feminist legal mobilization for abortion rights in Latin America, Open Democracy / ISA RC-47: Open Movements, 22 March. https://opendemocracy.net/democraciaabierta/feminist-legal-mobilization-for-abortion-rights-in-latin-america
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