US can learn from Latin America’s abortion laws post Roe v. Wade, experts say

(RIO DE JANEIRO) — Fabiana*, 24, was pregnant with her second child in Rio de Janeiro, and, like thousands of other Brazilian women, knew she could not rely on the health care system.

“It was just too much for me,” she told ABC News. “I just couldn’t handle that. I don’t want to become like many women with many kids.”

Her mother worked as a maid for a wealthy family who offered to pay for a doctor, but, not wanting to incur any debt, she said she instead found a cheaper option where she could buy abortion medication on the black market.

“I was not scared to take it,” she said. “I wanted to be released from this pregnancy. I couldn’t afford [a baby]. It was impossible.”

“Of course, I would have preferred to go to a hospital but this option was not even possible for me. I didn’t even think of it,” she added.

Fabiana’s story plays out across the continent every year, though she admits she was lucky not to have any complications. Brazil’s old penal code has remained untouched since 1940, prohibiting abortion in all cases except when the pregnancy is a result of rape or endangers a mother’s life, and activists fear that the country could — like in parts of the U.S. — move to enact stricter laws.

As a region, South America has some of the strictest abortion laws in the world, yet, according to one study in the Lancet, ranks among the highest estimated frequency of abortions administered. Despite Brazil’s restrictive legislation, around 500,000 illegal abortions are believed to take place annually for women between the ages of 18 and 39, according to one 2019 study.

That pattern has played out across the continent, highlighting a trend that activists in the U.S. have long observed — criminalizing abortion does not lower the number of abortions, it merely makes them more unsafe for women.

Yet, while the continent has long been known for its restrictive reproductive rights practices, human rights groups and lawyers point to a number of crucial developments that may be turning the tide, and, in an unfriendly political environment, may provide lessons for their counterparts in the U.S.

‘A system of guilt for pregnant women’

The severity of abortion laws varies from place to place in Latin America and the Caribbean, but in six countries — El Salvador, Honduras, Nicaragua, Dominican Republic, Haiti and Suriname — abortion in any instance carries a criminal penalty.

While that does not mean abortions do not happen there, criminalization has led to women turning to underground means to get abortions and has disproportionately impacted the poorest in society, activists say.

In the case of El Salvador, abortion was decriminalized for a brief period between 1973 and 1975, but a penal code instituted in 1978 engendered a total ban — including in the case of incest or rape.

“I had no other choice than turning activist,” Mariana Moisa, a campaigner in El Salvador, told ABC News. “And now that the U.S. has reversed Roe v. Wade, most conservative groups in Salvador and other countries who always denied women’s rights do see it as a validation of continuing women’s rights violations.”

Doctors run a huge risk in providing abortions in secret, and the criminalization of the procedure has led to cases where non-induced miscarriages have led to convictions, Mariana Moisa, a campaigner in El Salvador, told ABC News.

This year, a woman known as “Elsy” was finally released after a decade in prison, having been sentenced to 30 years for aggravated homicide after she suffered a miscarriage.

“There is a system of guilt for pregnant women. Women are constantly afraid,” she said. “Most women do not have the economic means to find a doctor to get a safe abortion. But for rich women this is not an issue.”

While El Salvador’s policies are stricter than those faced by the likes of Fabiana in Brazil, the risk women face of running into the judicial system when seeking an abortion are just as real.

“Very often, in hospitals woman cannot have an abortion without entering into the judicial system,” Gustavo Scandelari, a criminal law professor at the Federal University of Paraná. “We need so many improvements in our legal system. It has not changed since 1940. We are so backward.”

In the 2020 case of one 10-year-old girl in Espíro Santo State, Scandelari said, a judge initially denied her request for abortion before a media campaign helped overturn the decision. A similar ordeal faced an 11-year-old rape victim this year, who was initially refused an abortion because she was in the 22nd week of her pregnancy.

“There is no improvement in the abortion discussion in Brazil,” Luciana Temer, president of the human rights organization Institute Liberta, told ABC News. Even worse than that, what happened in the U.S. could happen here sooner than we think. It would be even worse than in America as the Law would be national, states could not make individual exceptions.”

“Now that the U.S. has reversed Roe v. Wade, most conservative groups in Salvador and other countries who always denied women’s rights do see it as a validation of continuing women’s rights violation,” Moisa said.

The ‘green wave’ movement

Catalina Martínez Coral, the regional director for the U.S. based Center for Reproductive Rights, said that while the continent is home to strict abortion laws, there is cause for optimism.

“I think in Latin America, the Caribbean, we have been seeing very important victories in the last couple of years, even though this continent has some of the most restrictive abortion laws,” she told ABC News. “In the last couple of years we have been seeing how a movement has grown across the region, this green wave movement of women mobilizing for reproductive rights.”

This started in Argentina, she said, which after years of grassroots pressure legalized abortion up to 14 weeks in 2020, and has been followed up by the Supreme Court in Mexico’s decision to recognize the right to abortion in 2021, and the constitutional court of Colombia decriminalizing abortion up to 21 weeks, the continent’s most progressive ruling to date.

That, Coral said, has been followed up in Chile. While the country’s Congress has moved to restrict reproductive rights in recent years, keeping them on par with Brazil, the election of progressive Gabriel Boric, and his proposals for a new constitution, recently saw the right to abortion added to a draft text that is set to go to a public vote in September.

“Judges and lawmakers have played a very important role in Argentina, Congress in Mexico, Colombian Judges,” Coral said. “We cannot deny that was important, but I think that the most important role was played by civil society organization and feminist movements as these movements have understood that, in Latin America, a legal win is not enough, that we really need to create a public conversation around these matters so that we can really implement these decisions. The strategy of the movement in Latin America has been to be able to socially decriminalize abortion.”

The lessons to be learned from Latin America, Coral said, is that a combination of legal and grassroots pressure is required to improve, as well as uphold, reproductive rights.

Even with those successes, 97% of women of reproductive age in Latin America live in countries with restrictive abortion laws, according to the Center for Reproductive Rights.

And both Temer and Moisa fear the overturning of Roe v Wade has helped embolden conservative feeling in the region, and could lead to even more restrictive practices.

*’Fabiana’ is a pseudonym given to protect her identity

ABC News’ Jamie Dorrington contributed to this report

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