by Paola Bergallo, Agustina Ramón Michel
From the Abstract and the Introduction
Up to 2000, all continental Latin American countries regulated abortion through their criminal codes. Chile, El Salvador, Honduras, and Surinam were at one extreme of the spectrum, providing for a total ban of the practice. At the other extreme, Guyana was the only country decriminalizing abortion by regulation of periods. Most of the other countries of the region were somewhere in between, having adopted versions of permissive indications throughout the 20th century that decriminalized abortion in case of rape, fetal malformation, risk to the health or the life of a woman, or combinations thereof. In most of these countries, however, abortion services were unavailable, and allegations of the unconstitutional status of the criminal indications abounded.
The landscape of abortion law in continental Latin America looks rather different today. With the exception of Nicaragua and El Salvador, the countries that have reformed their abortion laws or their constitutional interpretations of abortion laws dating from the previous century have moved toward a more liberal framework. Among the jurisdictions that have adopted new statutes, Uruguay and Mexico City stand out: they replaced their old indication rules with a model that decriminalizes abortion until 12 and 14 weeks of pregnancy, respectively. Another group of countries – Argentina, Bolivia, Brazil, Colombia, Ecuador, Peru, and Panama – and several Mexican states have put into motion legal changes to assist with the implementation of their old rules providing for a model of permissive indications. Finally, a last group of countries – Costa Rica, Guatemala, Venezuela, and Paraguay – and a few Mexican states have protected the status quo, neither amending their old criminal laws, nor developing public policies to guarantee abortions in circumstances where they were exempted from punishment.
This article offers an overview of the turn toward more liberal rules and the resolution of abortion disputes by reference to national constitutions. First, the main legal changes of abortion laws in the last decade are surveyed. Landmark decisions of the high courts of Argentina, Bolivia, Colombia, and Mexico are then analyzed. We show that courts have accepted the need to balance interests and competing rights to ground less restrictive laws. In doing so, they have articulated limits to protection of fetal interests, and basic ideas of women’s dignity, autonomy, and equality. The process of constitutionalization has only just begun. Constitutional judgments are not the last word, but they are important contributions in reinforcing the legality of abortion.
Source: International Journal of Gynecology & Obstetrics, November 2016, 135(2):228–231