By Lydiana Rossetti
Abortionist legislation has been gaining ground in Latin America in recent years, with countries like Uruguay, Argentina, Colombia, and some states in Mexico decriminalizing abortion.
However, Brazil remains the only one among the five largest that resists the so-called “green wave,” as militancy defines the movement advancing on the continent.
Currently, 612 proposals directly or indirectly related to the theme are being processed in the Brazilian Congress, 25 of them this year, most of them proposing additions to the Penal Code to intensify the criminalization of abortion and expand the rights of the unborn child.
Although most of the Brazilian population is against abortion, stances taken by the Lula government and Brazilian judicial activism signal a risk that the abortionist tide will affect the country in the coming years.
The approval of abortionist legislation via the Judiciary in two Latin countries (Colombia and Mexico) lights a warning sign for the Brazilian case since, with Lula’s next appointments, the new Supreme Court (STF) should become even more activist than the current one.
Although the two retiring justices were appointed by PT presidents (Dilma Rousseff appointed Rosa Weber in 2011, and Lula appointed Ricardo Lewandowski in 2006), Lewandowski voted against abortion in cases of anencephaly in 2012, arguing that Congress should vet a topic of such importance.
A proposal to decriminalize voluntary abortion up to the third month of gestation, made by the PSOL (ADPF 442) in 2017, is being processed in the STF.
Pro-abortion activists expect Weber to put the issue on the agenda before she retires in October of this year.
The president of Brazil Without Abortion Movement, Lenise Garcia, warns about the complexity of such a decision being taken by the Judiciary “because there would be no legislation to guide the rules.
“In practice, what is intended is a revocation of the Brazilian Penal Code on this subject and, with this, abortion would be completely liberated in Brazil,” she predicts.
Two acts of the Executive right at the beginning of the mandate – reinforcing Lula’s historical stance on abortion, which he tried to distance himself from to win over the evangelical electorate during the presidential campaign – also point to the possibility that Brazil will take a course contrary to what the people want.
Ordinance GM/MS 13, of January 13, 2023, revoked Ordinance GM/MS 2.561, of 2020, which “Provides on the Procedure of Justification and Authorization of Interruption of Pregnancy in the cases provided by law, within the scope of the Unified Health System-SUS.”
With the novelty, it is no longer necessary to report a crime of rape to be investigated to establish pregnancy resulting from violence against women.
Nevertheless, Law13.931/2019, enacted by former president Jair Bolsonaro, is still in force, determining that health professionals must compulsorily notify the police about “cases in which there is evidence or confirmation of violence against women assisted in public and private health services,” rape must be reported in any circumstance.
In Garcia’s evaluation, the PT ordinance creates a risk for doctors, who may incur crime for not knowing the law, besides favoring that sexual violence against women goes unpunished.
Also in January, the Lula government announced Brazil’s withdrawal from the Geneva Consensus, an agreement signed by the Bolsonaro government with 30 other countries to defend women’s health and family valorization.
In 2020, the signatories committed that “in no case should abortion be promoted as a method of family planning” and that “any measures or changes related to abortion in the health system can only be determined at the national or local level per the national legislative process.”
BRAZIL
Due to Brazil’s territorial extension and historical regional leadership, feminist movements targeted the country as a priority to initiate the legalization of abortion in Latin America and, from there, to reach neighboring countries.
However, the strategy had to be changed when in May 2008, there was a historic vote in Congress on PL1135/91, which provided for the legalization of abortion up to three months gestation.
After getting 33 votes against and none in favor of the Social Security and Family Commission (CSSF), the Constitution and Justice and Citizenship Commission (CCJ) rejected the matter in July of the same year.
“The Brazilian parliament is not in favor because the majority of the Brazilian population is not in favor of abortion,” says Lenise Garcia.
Proposed by then-congressman Eduardo Jorge (PT), the PL has been shelved since 2012.
In Brazil, abortion is considered a crime by the Penal Code, with a penalty of up to three years in prison for those who abort and up to four for those who help in the procedure.
The punishment is not applied in cases of rape, a risk to the woman’s life, and fetal anencephaly.
LATIN AMERICAN SCENARIO
Of the Latin American countries, only five have legalized abortion.
The first to enter the list was communist Cuba, followed by Uruguay, Argentina, Mexico, and, most recently, Colombia.
Latin America ranks second among the continents with the most conservative abortion legislation, with the first place belonging to Africa.
“The liberation of abortion in Latin America is being done against most of the population and also against doctors.”
“A real problem in Argentina and Colombia is the issue of conscientious objection. Doctors refuse to do abortion, and it’s their right, but a right they want to take away,” warns the president of Brazil Without Abortion Movement.
One of the arguments of the abortionist militancy for decriminalization is that clandestine abortions are risky to a woman’s life.
However, Garcia points out that the risk to the mother remains, even in legalized procedures.
In 2021, young pro-abortion activist María del Valle González López, 23, died in Argentina after having a legal abortion.
“We must remember that most of the time, it is not the pregnant woman who decides to have an abortion; she is pressured t have an abortion and does not find the welcome necessary to carry on with the pregnancy.”
“It would be essential to have public policies that effectively help these women, not that bring abortion as a solution,” argues Lenise Garcia, who is the author of the book Forced Abortions – How the Legalization of Abortion Takes From Women Their Reproductive Rights (National Studies, 2019).
In a recent survey conducted in the US, over 60% of women who have had abortions report high levels of external pressure to take their babies lives.
Check out what the legislations of Latin American countries say about the issue:
CUBA
In communist Cuba, killing the baby up to the 10th week of gestation has been legalized since 1965.
The Cuban Penal Code foresees a crime only in cases of abortion for profit that takes place outside hospitals or is performed by unqualified personnel.
URUGUAY
In 2012, Law 18,987, passed by the Uruguayan Congress, allowed the termination of pregnancy for any reason up to the 12th week.
After that period, abortion is allowed in cases of rape, fetal malformation “incompatible” with life, and risk to the mother’s health.
The legislation states that in this way, the state is guaranteeing the right to conscious and responsible procreation, recognizing the social value of motherhood, protecting human life, and promoting the whole exercise of the sexual and reproductive rights of the entire population.
ARGENTINA
In Argentina, since 2021, “women and people with other gender identities with gestational capacity have the right to decide and have access to the termination of their pregnancy until the fourteenth (14th) week of the gestational process,” according to Law 27,610.
Outside this period, abortion is only allowed in case of rape, with an oath from the pregnant person to health professionals.
An oath is not required if the pregnant woman is under 13 years old.
Argentine law also allows abortion in other stages of pregnancy when the life and health of the mother are at risk.
MEXICO
In Mexico, regulations vary by state. Of the 32 Mexican states, only four have decriminalized abortion voluntarily.
Others remain with restrictive measures, liberating only in case of risk to the woman’s life, anencephaly, and rape.
However, in 2021 the Mexican Supreme Court invalidated articles 195 and 196 of the Penal Code of the State of Coahuila de Zaragoza, claiming that they take away a woman’s right to decide to have an abortion voluntarily.
Feminist activists saw the decision as a loophole for legalizing abortion nationwide.
COLOMBIA
In 2022, the country began allowing abortion of nearly-formed babies, up to six months gestation, through a ruling by the Constitutional Court.
Colombia also does not consider abortion a crime, according to the text of ruling C-355, promulgated by the Colombian Court in 2006, in the following circumstances:
- when the continuation of the pregnancy constitutes a danger to the life or health of the woman, as certified by a doctor;
- when there is a severe malformation of the fetus that makes its life unviable, certified by a doctor;
- and when the pregnancy is the result of conduct, duly notified, that constitutes carnal access or sexual intercourse without consent, abusive or non-consensual artificial insemination or transfer of a fertilized egg, or incest.
BOLIVIA
In 2017, Bolivian parliamentarians approved an update to the Penal Code that made it a crime not to consider abortions performed up to eight weeks by pregnant women who study or are responsible for the care of the elderly, disabled, or minors.
Abortions performed by children or adolescents are also permitted at all stages of pregnancy and in cases where there is a risk to the mother’s life, regardless of age.
CHILE
The legalization of abortion was even included in the proposal of the New Chilean Constitution, which was rejected last year by 61.87% of the population.
Therefore, the 2017 Law 21.030 remains in force, which allows abortion in situations of risk to the mother’s life, “fetal unfeasibility,” and rape.
OTHER COUNTRIES RESIST
Most other countries decriminalize abortion only in some circumstances.
In Paraguay, Peru, Venezuela, Puerto Rico, and Guatemala, abortion is only not considered a crime in cases of risk to the life and health of the mother.
In Haiti, Honduras, Nicaragua, El Salvador, Suriname, and the Dominican Republic, on the other hand, abortion is considered a crime under any circumstance.
It is understood that there is life from the moment of conception.
With information from Gazeta do Povo