Majorities Protecting Rights: The 2018 Abortion Reform in Argentina (I-CONnect Column)

—Francisca Pou Giménez, ITAM, Mexico City

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2018, see here.]

Today, the Argentinian Senate will be holding an historic vote on the legalization of abortion in the country. The debate and the vote in the Senate is the second stage of a parliamentary process that started in the Chamber of Deputies, where the bill under consideration was approved last June 14, by a very tight majority and after an electrifying, marathon session filled with uncertainty as to the results up until the very last moment.

The bill legalizes abortion during the first 14 weeks, and decriminalizes it after that point in case of rape, health risks for the woman, and fetal malformation. It allows for the exercise of conscientious objection by individual medical personnel, yet states that health care providers must at all times enjoy the means to carry out legal abortions. The legislation now in force dates to 1921 and decriminalizes abortion in case of rape and threats to the health or life of the woman, but even after an important ruling by the Argentinian Supreme Court in 2013,[1] which underlined the non-negligible space that legal abortion enjoys if the criminal code is properly interpreted under applicable constitutional and treaty provisions, safe and affordable abortion has continued to be largely unavailable to Argentinian women.

After the vote in the Chamber of Deputies, which was accompanied by unprecedented social mobilizations under the coordination of the National Campaign for Legal, Safe and Free Abortion, there have been also strong mobilizations on the part of the Catholic Church, as well as politicians and social movements that oppose the bill and strive to prevent its final passage. Debate in the Senate commissions has been partly sensitive to these criticisms and has led to the drafting of a modified text which cuts the period of legal interruption from 14 to 12 weeks, suppresses the penalties applicable to doctors refusing to practice legal abortions and, far more dangerously, grants to institutions —and not just individuals— the right to conscientious objection. The plenum of the Senate is set to debate and vote on either the modified bill or the original Deputies’ proposal —there seems to be a technical discussion under way on this question— today, August 8, 2018.

The Argentinian abortion reform, closely followed in the entire Latin American region, is extremely relevant, first and most obviously, from the perspective of equality and rights protection. While so many democracies in Europe and North America have moved to second-wave legislation based on the legalization and public coverage of early abortions, Latin America remains largely within the confines of criminal frameworks that leave women at the mercy of medical personnel and prosecutors. This status quo has fed a segregation between privileged women with the means to seek safe abortion privately and underprivileged women unable to do so, often with fatal consequences, and has reinforced the radically unequal distribution of opportunities and welfare that still prevails in the region across all life domains.[2]

But the Argentinian process is relevant also from a perspective attentive to the texture of the political and legal interactions on display. Two features, in my view, are immediately salient. The first one concerns, classically, the relations between citizens and the different power branches within the frame of constitutional democracy. Briefly stated, the Argentinian process seems to indicate a shift from a judiciary-centered politics to a more parliamentary-centered politics in a highly sensitive rights area. As is well known, the major landmark points on recent Latin American constitutional debates on abortion have been set by apex courts, not parliaments. While these courts have often discussed acts or drafts adopted before them by parliaments, the core political and social struggles have been carried out in the judicial forum. As scholars have extensively documented, the intensity of the “judicialization of politics” has singled out Latin America over the last three decades, in the face of parliaments which have had a hard time taking responsibility for the Constitution.

The 2018 abortion debate in Argentina could signal incipient change.[3] While the Supreme Court might have to decide on the matter in the future independently of how things turn out today in Congress, nothing in these last months has mirrored the sort of diluted, narrow-minded majoritarian politics we assume to be the rule in the region. The strength, energy and reach of the political debate, and the interactions inside/outside Congress, have been outstanding. Before the vote in the Chamber of Deputies and for two months, around 730 citizens had a chance to address its commissions and raise points of all sorts. Within the Chamber, deliberation was spurred by the fact that abortion divided political parties largely in the same way it divides society at large, and a remarkable degree of genuine debate —reflected and nurtured in both new and traditional media— ensued. Public interventions continued in the Senate commissions from early July. We have probably witnessed, in short, representative democracy as deliberative and participatory as it can realistically get. While Courts —both the Inter-American Court, author of the very remarkable Artavia Murillo ruling, and its constitutional counterparts— have made significant contributions to the evolution of abortion law in the region, especially in terms of clarifying what is normatively at stake in abortion regulation, they have not succeeded at guaranteeing real access and have often been insufficiently assertive.[4] If, for some, abortion is the sort of paradigmatic rights question that must be kept safely out of majority reach, experiences like the Irish referendum last May suggest that, when certain conditions are met, rights protection through majoritarian channels is possible and can further more profound and effective dynamics of social transformation.

The Irish process, marked also by an extraordinary degree of participation, public engagement, and interaction between citizens and their representatives, suggests that whether majorities eventually protect rights may depend on the existence of political practices that develop gradually over time at the impulse of upward popular pressure. In Latin America, the time has probably come to expel political majorities from the “comfort zone” their traditional indolence has paradoxically secured them. Beyond and besides eventually resorting to courts before legislative inaction, Latin American democracies are now mature enough to have legislatures take responsibility for the Constitution and the rights it enshrines. Independently of how things turn out in the Senate today, the transformative forces unleashed by this legislative-centered struggle in Argentina should have an impact on what people in the whole region —specially women— should be prepared to demand from their democratic representatives.

The second conspicuous feature is the “naturalized” use of comparative arguments on both sides of the debate. Supporters of the reform have of course made extensive reference to the evolution of regulation in other countries, and have framed the Argentinian debate against a transnational backdrop that, in the times of the women’s movement, features a progressive horizon. Opponents, however, have also discovered comparative law. Senators have curiously pushed a move from 14 weeks to 12 weeks —the precise number of weeks that was under consideration in the Irish referendum— and have raised the notion of “institutional” conscientious objection —a concept considered largely nonsensical by constitutional scholars but readily available for import from the 2017 Chilean Constitutional Court abortion ruling.[5] As Kim Lane Scheppele has underlined when commenting on recent developments in Hungary and Poland, authoritarian rulers are increasingly enthusiastic fans of comparative law and apply techniques and regulations that have proved elsewhere useful in their quest to undermine constitutionalism while keeping an appearance of regularity.[6] Like judicialization, or the use of rights’ discourse, resort to comparative law is not the province of any particular ideological strand any more. If nothing else, this confirms that current events in Argentina touch on processes that deeply concern us all.

Suggested citation: Francisca Pou Giménez, Majorities Protecting Rights: The 2018 Abortion Reform in Argentina, Int’l J. Const. L. Blog, Aug. 8, 2018, at: http://www.iconnectblog.com/2018/08/majorities-protecting-rights-the-2018-abortion-reform-in-argentina-i-connect-column/

[1] F.A.L s/ medida autosatisfactiva, Supreme Court of Argentina, March 13, 2012.

[2] For an analysis of Latin American models of abortion legislation in comparative perspective, see Paola Bergallo, “Aborto y justicia reproductiva: una mirada sobre el derecho comparado” (Cuestión de Derechos, 1, 2011, 1-28); Paola Bergallo and Agustina Ramón Michel, “Abortion”, in Juan F. González Bertomeu and Roberto Gargarella (eds), The Latin American Casebook. Courts, Constitutions and Rights (Routledge, 2016). About the shortcomings and non-effectivity of the indications model see, Paola Bergallo, “El derecho como modelador de las decisiones reproductivas y los límites de giro procedimental” (Revista de Derecho Privado, 1, 2012, 207-269). For a most recent account of abortion-related legal debate in Latin America see the contributions in Paola Bergallo, Isabel C. Jaramillo, and Juan Pablo Vaggione (eds.), El aborto en América Latina. Estrategias jurídicas para luchar por su legalización y enfrentar las estrategias conservadoras (Siglo XXI Editores, 2018).

[3] The processes that ended up in the passing of the Equalitarian Marriage and Gender Identity Acts in 2010 and 2012, respectively, should be referred to as even earlier instances of the same sort of majority-led rights-protecting change.

[4] See, for instance, the contributions to the Symposium on the Chilean Constitutional Court Abortion Decision coordinated by Marta Machado in this blog, for an identification of strengths and weaknesses of apex court interventions in Chile or Colombia. See also Roberto Gargarella, “El lugar de la Corte Suprema en el debate sobre el aborto” (La Nación, July 16, 2018). Artavia Murilloy otros  vs. Costa Rica is a 2012 case about assisted reproduction techniques where the Inter-American Court interprets Article 4 of the American Convention and clarifies that the protection of unborn life begins at the moment of implantation, not before, and it is only gradual; it also identifies and develops the range of women’s rights that must receive full protection together with the regard to be paid to unborn life.

[5] See the Rondon et al. in the Chilean ruling Symposium.

[6] See Kim Lane Scheppele, “Autocratic legalism” (U. Chic. L. Rev., 85, 2, 545-582)