Received: February 05, 2019
Acceptance: February 27, 2019
LThe arrival of sexual and reproductive rights on the public agenda marked a new moment in the dynamics between law and society in Latin America. But despite important regional and international advances in guaranteeing sexual and reproductive rights in recent years, these often provoke tensions between those who favor their recognition and those who oppose them. Perhaps the most controversial issue is abortion: in some cases it has been decriminalized (Mexico City, Uruguay, Chile); in others (Argentina, Bolivia, Chile, Colombia, Mexico, Peru) a limited right to abortion has been reinforced to protect women's rights to health while progress is made slowly towards liberalization. Still, these earned rights are not always reflected in the adequate provision of safe and dignified health services for women in need of abortion. On the other hand, in some countries there is a total prohibition on abortion (El Salvador, Nicaragua) even in cases where the pregnancy endangers the life of the woman, which results in the death or imprisonment of women who make the decision. to abort. Finally, in other regional contexts (Brazil, USA) the arrival of the extreme right to power presents great challenges for the exercise of women's rights, such as deciding on their own body, which threatens the rights they have won. It is more than clear that the role of the courts in these battles will be fundamental. In the discrepancy of this number of Encartes We hope to clarify some of the main points of the debate around this issue so fundamental for the life and health of women, and for social equality in Latin America.
Lhe contemporary judicialization of abortion in Latin America is a pendulum that oscillates between the litigation promoted by the feminist movement and the conservative movement. The impacts of these litigation have meant, for the most part, a jurisprudential advance for the human rights of women: equality and non-discrimination, reproductive freedom and autonomy, the right to free development of the personality and the right to health. By endorsing the decriminalization of abortion for reasons or within a certain term, the constitutional courts promote the advancement of reproductive justice, setting important judicial precedents in the region, as in the cases of Colombia (2006), Mexico (2002, 2008) and Chile (2017). The decisions of the courts of these countries have promoted access to legal abortion services in public hospitals and better guidelines in reproductive health. However, they have also sparked a social countermobilization that promotes the "protection of life from conception" with greater fervor from the pulpit to legislatures and other state agencies. It cannot be said that the judicialization of abortion always has positive results for the advancement of reproductive rights in the region. Constitutional judgments tend to be minimalist in terms of understanding the meaning and scope of women's reproductive rights at stake, having great differences towards the protection of prenatal life. At other times, they leave a sufficient margin of action for health professionals to make confusing interpretations, which is why they are often fearful of practicing pregnancy terminations in order not to commit a crime. Consequently, the judicialization of abortion has contradictory and contingent results for the rights of women in Latin America.
Pro and anti-abortion movements have been operating on various fronts of dispute for some time in the region, and it is interesting to observe how the actors move from one arena to another according to the balance of political opportunities. Thus, when it comes to institutional disputes, the judiciary is activated when there is less room to advance in the other arenas.
In Brazil, strategic access to justice is seen as an important strategy to avoid the conservative rise in the executive and legislative arenas. Since 2006, the presence of conservatives and evangelicals has increased significantly in parliament. The Parliamentary Front in Defense of Life is gaining strength and the bills that propose a total ban on abortion have become a concrete threat of regression in relation to the existing legislation.1 This conservative turn was accentuated in the executive as of 2016 with the parliamentary coup that removed Dilma Roussef from the Presidency of the Republic.
At the same time, the Supreme Federal Court (STF) is transforming into an institutional arena open to the subject. In 2012, the STF guaranteed women the right to terminate an anencephalic fetus. This was the only time that progress was made in the legal framework of the prohibition, expanding the hypotheses of legal abortion envisaged by the Brazilian criminal legislation of the 1940s (which provided only two exceptions to the crime-risk of life of the woman and rape) . The victory in that case revealed the potential of prosecution to advance the pro-election agenda. The hopes of progress on this issue today are placed in this Court, where an action is being processed that claims the decriminalization of abortion.
However, when talking about possible advances through judicialization, the risks of the effect cannot be ignored. backlash. Recently, a decision in favor of the decriminalization of abortion2 It provoked a furious reaction from conservative parliamentarians, who pushed forward a proposal to amend the Constitution to include the protection of life from conception, which means going back on existing legislation.
ANDn the last two decades, for important sectors of the women's and feminist movements in Latin America, legal mobilization processes have become one of the possible strategies to enable new political, legal and social-cultural frameworks around the abortion. Beyond the differences that these strategies adopt in each country, the legal and sociocultural situations where they are framed, we have been able to witness how the experiences of judicialization promoted by these movements in countries such as El Salvador, Mexico, Argentina, Colombia, among Others have contributed to the fact that in the public debate legal technicalities, court records and convictions shed the traditional cryptic language where the law is based, and embody the bodies, faces and stories of real women. I also believe that the judicialization of abortion promoted by feminisms is becoming key, inasmuch as it tries to break with the liberal and patriarchal fable of naturalization and abstraction of law. The judicial cases throughout the region have given light to the different power games of the subjects involved in the disputes, which shows a series of stereotypes of gender, class, race and ethnicity, dynamics that are often veiled through of the narratives of universality and abstraction that govern a large part of the conceptions of "law" as social discourse.
Despite these advances to progress in the legal recognition of abortion, we must point out that the use of the courts is not exclusive to feminist and women's movements. Different cases in the region put us in front of how conservative sectors turn to the courts to try to reverse legal reforms, as well as block access to abortion cases already allowed by law. Increasingly, these sectors have standardized their judicialization strategies at the regional level, challenging key speeches and flags of women's movements in opposition to abortion when promoting liberating reforms, such as the discourse of human rights. At present, this is one of the challenges regarding the judicialization of abortion, where conservative sectors, far from rejecting the plexus of human rights, have reappropriated this discourse, resignifying it based on their moral and ideological matrices whose background refers to perpetuate social, cultural and economic orders of subordination, constructed discursively as belonging to a natural and universal order, away from the multiple and diverse vital realities of people.
Lhe recent elections of Trump (2016), Bolsonaro and López Obrador (2018) demonstrate the seduction of populism in the region, whether of the right or the left. I include López Obrador because he does not seem to support the ideology of a liberal left when it comes to women. None of the three presidents is in favor of abortion, nor does they have a clear policy of promoting the sexual and reproductive rights of women, adolescents and girls. This conservative populism represents a serious threat to sexual and reproductive rights due to its proximity to traditional ideas about the family and discriminatory for women, emphasizing their social destiny to be “good mothers and wives”. In the cases of the far-right Bolsonaro and Trump, their public and cynical misogyny views women's bodies as available material for male sexual subjection and dominance. In their hands, the sexual and reproductive rights of women are - and will be - in constant threat of being restricted through their public health policies and their worrying alliances with religious hierarchies, both Catholic and evangelical. Beyond the administrative impact that their policies have on the budget cuts for sex education programs, the obstruction of the financing of reproductive health organizations and clinics and the regressive attempts to limit it in the field of justice, the most serious blow of these governments it is cultural: the idea that women are reproductive entities and their denigration as sexual objects in public discourse, an issue that widely legitimizes machismo and toxic masculinities inside and outside, in Brazil and the United States. In short, even in the face of the green wave of social mobilization that shook Argentina and that has fervently escalated to other countries in the region, promoting public debate on the decriminalization of abortion, the resistance to the advancement of reproductive rights in the Americas they are strong and have increased with the coming to power of populist governments.
Jair Bolsonaro, following Trump's example, was elected with an openly misogynistic speech. It has publicly defended wage inequality between men and women and, in its most radical version, has incited violence against women and the LGBT population. Although any analysis of his government is still precocious, I will try to characterize three processes that threaten the equal rights agenda.
The first is silent, it is about the dismantling of previous public policies. In the case of sexual and reproductive rights, it seeks to dismantle the network of legal abortion services, a process that had already been launched by the previous government. Making it difficult, scarce or interrupting access to these services - which no longer covered all the country's demand - is something that is in the direct action of the executive and that is why it happens in an inconspicuous way.
The second is the most strident. It is the moral dispute of society. It is about the agenda to combat "gender ideology", cited as a priority in the president's protest speech. One of the fronts of this agenda is the exclusion of sex education and gender issues from school curricula. Conservative mobilization around education plans has become common in recent years in several Latin American countries, and can have disastrous consequences in a scenario in which teenage pregnancy is already a serious problem.3 Even on a symbolic level (not without practical unfoldments), the history of the Special Secretariat for Policies for Women is emblematic. Created in 2003 by the Lula government and headed during that period by feminists linked to social movements, it was converted by Bolsonaro into a secretariat associated with the renamed Ministry of Women. of the family and Human Rights (my italics). To lead this secretariat, Bolsonaro chose an evangelical pastor who has already spoken out publicly against abortion and in favor of the dedication of women to motherhood.
The most dangerous process, it seems to me, has to do with incitement to diffuse violence against minority groups. The high and growing rates of gender-based violence in Brazil — sexual violence, domestic violence, femicide4 and hate crimes against the LGBT population—5 they find symbolic legitimation with the election of Bolsonaro. Not only sexual and reproductive rights are at risk, in a context in which gender violence is on the rise.
LThe regressions in sexual and reproductive rights and hate speech that are being revealed both in Brazil and in the United States is a clear alarm, not only for defenders of these rights, but for human rights defenders in general in the whole region. In Brazil, even before the election of Jair Bolsanaro, we could see how a conservative political agenda was operating, in which one of its pillars is the discursive / political apparatus of “gender ideology” (we can analyze, for example, the case of impeachment of former President Dilma Rousseff in Bolsonaro's own speech).
If a decade ago the agenda of sexual and reproductive rights was a point of attack by conservative religious sectors, especially the Catholic hierarchy, today the umbrella of "gender ideology" allows not only to unite conservative sectors in moral matters sexual but also nationalist, neofacist and neoliberal sectors, among others. But beware, in this context religion continues to occupy a central role in political life. The advancement of the more conservative evangelical sectors throughout the region is a political component that has changed not only the region's sociodemographic physiognomy, but also in many cases the traditional actors in the alliances between religion and politics.
The electoral triumphs of conservative leaders like Jair Bolsonaro, his electoral political platform based on an alliance with the evangelical churches in Brazil, has become a model for the right-wing in the region. This undoubtedly constitutes a threat not only to the rights of women and LGBTTI persons, but also to other historically subalternized individuals and communities.
Lhe intersectionality reflects the historical concern of including the experiences of racial discrimination (especially of Afro-descendant women) in the analyzes of gender violence and inequality. Therefore, it proposes to analyze and understand discrimination at the crossroads of gender, race and class, mainly. As a result of this criticism of racial blindness in the review of cases of violence and discrimination against women, other categories equally suspected of violating equality have been added in Latin America: ethnicity, sexual orientation, age , and so on. Perhaps intersectionality can be better understood as a question. How can the experiences of women based on their race, gender and class be better incorporated into analyzes of discrimination? How to highlight particular experiences when analyzing the structural inequality that women or some historically discriminated populations go through? The answer is contextual and casuistic in constitutional interpretation exercises. The Inter-American Court of Human Rights has tried to make intersectional interpretations in recent judgments. For example, in the case of Talía Gonzáles Lluy, a girl who was infected with HIV when she was three years old by a blood transfusion in a hospital in Ecuador, the Court considered that the discrimination that Talía experienced was derived from multiple factors, as a result from the intersection of her age, gender and poverty situation, which was aggravated by having been infected with HIV (Inter-American Court of Human Rights, 2015).
However, the answer becomes more complicated when an attempt is made to include differential identity markers in the design of public policies, since the state budget and limited resources come into play, as well as the difficulty of incorporating the needs of very population groups into general norms and strategies. different. Applied to the field of sexual and reproductive rights, intersectionality can provide the necessary questions to analyze the discrimination that indigenous and Afro-descendant women have experienced in the region. How has the lack of access to sexual education and reproductive health services affected them in particular? What specific obstacles have you faced in making autonomous decisions in the area of sexuality and reproduction? What specific forms of discrimination do they suffer when trying to access public health services? According to ECLAC (2011), there are higher pregnancy rates among young indigenous women in the region, who also present high levels of educational backwardness and exclusion, compared to non-indigenous women. It has also been documented how indigenous and Afro-descendant women, due to the intersection of gender with race and / or ethnicity, are exposed to a greater risk of violations of their human rights in the face of the justice and health systems, in the absence of interpreters. in access to these services in cases of sexual violence (Inter-American Commission on Human Rights, 2011). Maternal mortality due to poor prenatal care and delivery is also another phenomenon that disproportionately affects Afro-descendant women in the region.6 In this context, faced with the regressive attacks of the current political conjuncture, intersectionality is a mandatory question to rethink (old) problems of structural discrimination in the sexual and reproductive sphere.
ORNone of the most perverse effects of criminalizing abortion is throwing women into the risks of unsafe abortion. Mortality and serious injuries resulting from unreliable procedures in women mostly affect poor and black women. In the same way, the scarce offer of legal abortion services mainly affects women users of the public health service. Thus, it is not possible to understand the consequences of the deprivation of the right to safe abortion, without the perspective of intersectionality. And it is this perspective that is used with increasing force by women's movements, which also in recent years have become more diverse and intersectional in Brazil. An example of this was the participation in the last public hearing on the decriminalization of abortion in the STF of the Criola collective, an entity that defines itself as an “anti-racist, feminist and anti-homophobic civil association”. In the framework of a new generation of feminist activism, the intervention of this group aimed to demonstrate that the “compound discrimination” and the “socioeconomic structural subordination” to which black women were subjected places them in a situation of greater vulnerability in relation to with the reproductive health policy of the Brazilian State (Criola, 2018).
Furthermore, it is urgent to place the debate on reproductive rights under the broader perspective of the feminization of poverty. In a country like Brazil - and this is also true for other Latin American countries - where a widespread macho culture reigns, pregnancy disproportionately affects the lives of women. Many times they take care of their children alone or are forced to move away or reduce their availability to work. Early pregnancy —which tends to increase in a scenario in which there is no access to sexual education and the gender focus is restricted in schools— also diverts adolescents from the study path, which directly affects their chances of having sex. get a formal job in the future. Intersectional theory is essential to deepen the debate around the consequences of the denial of education and reproductive health policies for women and their intertwining with issues of class, race and poverty.
TOIn light of this advance in the discourse of “gender ideology” that, as I said, brings together different right-wing agendas, today more than ever it is necessary to promote intersectional commitment and alliances. If, during the last 20 years, advances in certain rights have been generated in different contexts, at present the advanced conservative is trying to reverse those achievements and reinforce neocolonial, patriarchal, classist, racist and heteronormative agendas. Although apparently the “gender ideology” locates its attack on women and LGBTTI people, racism and class hatred are also being mobilized through this discursive and political framework. In the current Latin American context, this platform is also based on a neoliberal matrix whose objective is not only to make sex-generic bodies and subjectivities precarious, but also to appropriate the territories, natural resources, the public meaning of State policies, replacing the collective with the private; rights for consumption and plurality and difference for fear of the other.
Abajobir, Amanuel Alemu, Kalkidan Hassen Abate, Cristina Abbafati et al. (2017). “Measuring progress and projecting attainment on the basis of past trends of the health-related Sustainable Development Goals in 188 countries: an analysis from the Global Burden of Disease Study 2016”.The Lancet, vol. 390, no. 10100, pp. 1423-59. [https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(17)32336-X/fulltext - ]
Economic Commission for Latin America and the Caribbean (ECLAC) (2011). Health of the young indigenous population in Latin America: An overview. Santiago de Chile: United Nations
Inter-American Commission on Human Rights (IACHR) (2011). Access to Justice for Women Victims of Sexual Violence: Education and Health. OEA / Ser.L / V / II. Doc. 65
______(2015). González Lluy v. Ecuador. Judgment of September 1, 2015. Preliminary Objections, Merits, Reparations and Costs.
CEDAW Committee. Case of Alyne da Silva Pimentel v. Brazil, Communication No. 17/2008.
Criola (2018). Memoriais de Amicus Curiae na ADPF 442. [http://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=TP&docID=724453895&prcID=5144865], accessed on February 11, 2019.
Gianella, Camila, Marta Machado and Angélica Peñas Defago (2017). "What causes Latin America's high incidence of adolescent pregnancy?".CMI Brief, vol. 16, no. 9, November 2017. [https://www.cmi.no/publications/6380-what-causes-latin-americas-high-incidence-of]
Institute of Applied Economic Research and Brazilian Forum of Public Security (2018). Atlas of Violence 2018, Rio de Janeiro. [http://repositorio.ipea.gov.br/bitstream/11058/8398/1/Atlas%20de%20viol%C3%AAncia_2018.pdf], accessed on February 11, 2019.
LaGata, Carla and Lukas Berredo (2016). 2,190 murders are only the tip of the iceberg: an introduction to the Trans Murder Monitoring Project, Research Report, in TvT Publication Series, vol. 14. [https://transrespect.org/wp-content/uploads/2016/11/TvT-PS-Vol14-2016.pdf], accessed on February 11, 2019.