No Choice Instead of Pro-Choice: Argentine Women’s Struggle to Secure Reproductive Rights

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By: Aly Niehans

Buenos Aires, Argentina is a bustling, cosmopolitan city located on the Rio de la Plata, which eventually opens up to the Atlantic Ocean. Relatively isolated from the more rural, agrarian interior of the country, the city hums with culture, boasting one of the finest opera houses in the world in Teatro Colón, renowned art museums, and quaint neighborhoods overflowing with the famous tango music and dancers of Argentina. A city of immigrants, most originally from Europe, Buenos Aires is often referred to as the “Paris of Latin America,” proudly touting its European homogeneity, industrialization, globalization, and development as traits of a progressive, first-world country.

In 2010, during the controversial presidency of Cristina Fernández de Kirchner, the Argentine Senate, by the narrow margin of six votes, approved a law legalizing same-sex marriage, making Argentina the first country in Latin America to do so and the tenth worldwide. The law gives same-sex couples the same marital status as heterosexual couples, including adoption and inheritance rights. To put the exigency of this law in perspective, it took the United States five years longer to legalize same-sex marriage, finally doing so in the landmark 2015 Supreme Court decision in Obergefell v. Hodges. In addition to the early legalization of same-sex marriage, Argentina passed the Gender Identity Law two years later in 2012, giving anyone 18 years or older the right to free surgical operations and hormone therapy under their health insurance without court authorization. Also included in this law is the right for any citizen to obtain an updated, state-issued photo identification card matching their preferred gender at any point in their adult life.

However, over the facade of social progressiveness apparent in recent Argentine politics looms the refusal to grant fundamental rights to women nationwide, most notably in the state’s pointed denial of a woman’s right to safe, affordable, and accessible contraception and abortions. Contraception was largely inaccessible prior to the 2002 National Law on Sexual Health and Responsible Procreation, which guarantees accessible sexual health information and access to contraceptive methods and related health care services. However, this law did little to tackle the seemingly sacrilegious topic of abortion in Argentina.

A large obstacle to securing any sort of legal victory for improving women’s access to legal and safe abortions has been the power and reach of the Catholic Church in Argentina. With 76.5 percent of Argentines identifying as Catholic, it is unsurprising that religion plays a large role in both past and current discussions regarding abortion. When polled, 60 percent of Argentines believe that abortion should remain illegal, a figure potentially inflated by the overwhelming Catholic influence on society. In general, the Catholic attitude towards abortion is ardently and unwaveringly pro-life, with Catholic doctrine asserting the right to life of the fetus while simultaneously holding conservative views on the role of women and their autonomy both in terms of decision-making regarding their own bodies and more broadly when thinking about a woman’s role in society. In 2013, during the presidency of Cristina Kirchner, Argentine Jorge Mario Bergoglio assumed the role of Pope, becoming Pope Francis, the first Jesuit Pope and the first from Latin America. The presidency of Kirchner was, as previously mentioned, relatively progressive when it came to social issues such as same-sex marriage and LGBTQ rights. Not only did this elicit criticism from Pope Francis and the Catholic Church in Argentina, but the seemingly socially progressive agenda of Kirchner did nothing to address abortion, to the chagrin of feminists and pro-choice advocates nationwide but to the relief of Pope Francis and his Catholic colleagues. While historically Pope Francis has positioned himself as more progressive than many of his predecessors, he has recently come out reiterating the Church’s defense of “the innocent unborn,” further arguing that Catholics must remain “clear, firm, and passionate” in their pro-life beliefs.

Abortion has been a criminal offense in Argentina since the end of the 19th century, when laws were put in place banning the procedure without exceptions. The first notable change to the original laws was in 1922, when the state stipulated that legal abortions could be obtained in instances of rape, pregnancies threatening the health of the pregnant woman, or if the pregnant woman was mentally disabled. During the military dictatorship of 1976 to 1983, the penal code was changed to further reduce access to abortion through changes in wording that required women to be “grave” danger during a pregnancy to obtain a legal abortion and, in cases of rape, required that criminal proceedings commence prior to the woman seeking an abortion.

In 1984, following the fall of the military dictatorship, the laws regarding abortion were changed once again. Under this legislation, rape was not grounds for obtaining a legal abortion unless the woman raped was mentally disabled. However, in a 2012 ruling, the Argentine Supreme Court held that rape in any circumstance, regardless of the mental state of the woman, is grounds for receiving a legal abortion and that judicial authorization for an abortion is not necessary. Therefore, under the current law, it remains illegal for a woman to obtain an abortion unless the pregnancy puts her health at risk or she was raped. Penalties for performing an abortion range from one to ten years in prison, depending on the consent of the woman and her mortality following the procedure. If the person who performed the abortion was a doctor or an otherwise medically trained professional, they are subject not only to the aforementioned punishments, but to the suspension of their license to practice for double the amount of time incarcerated. A woman who obtains an abortion or causes her own is subject to one to four years in prison if the procedure was successful. If not, there is no punishment.

Not only are these laws archaic, as they stringently align with the almost 100 year old standards set in 1922, but they are unnecessarily detrimental to women’s health in Argentina and, more generally, the fight for women’s rights. While abortions remain illegal in Argentina, they are not difficult to obtain if one has the right connections, resources, and can afford the procedure. Argentina’s health ministry estimates that anywhere from 370,000 to 522,000 Argentine women annually illegally obtain an abortion, equaling more than 40 percent of all pregnancies in the country. The current law permits for a broad interpretation of when a woman’s health is at risk, as the law does not specifically define the term, allowing doctors who choose to perform illegal abortions to define “health” as they see fit. Because of this, many doctors choose to follow the World Health Organization’s definition of health: “a state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity.” Therefore, if a woman is depressed about her pregnancy or is afraid that having a child would worsen her socioeconomic well-being, she is technically able to obtain a legal abortion under the WHO definition of health, although this definition is not always received well by the legal system.

Still, when considering the illegality of the majority of abortions performed in Argentina, the host of problems stemming from the insecurity, cost, and danger accompanying these clandestine medical procedures cannot be overlooked. Abortions performed by medical professionals are available, but they cost around $1,000, significantly more than the average monthly salary of an Argentine citizen. For women of lower socioeconomic status, the price tag of a procedure that, when performed by a medical professional is one of the safest medical procedures available, is cemented as an inexorable roadblock. Because of the insurmountable burden and potential legal repercussions of obtaining a medically supervised abortion, a third of maternal deaths in Argentina result from unsafe, oftentimes self-performed procedures. In 17 out of Argentina’s 24 provinces, unsafe abortions are the leading cause of maternal death.

To avoid the legal consequences of seeking an abortion, or to minimize the costs of said procedure, many Argentine women resort to taking misoprostol, a drug developed in the 1970s to treat stomach ulcers but that can be taken to induce a miscarriage up to week 12 of a pregnancy. However, because the drug requires self-administration, many women take far more than the recommended dosage, resulting in unnecessary and serious, but preventable medical complications. Cheaper than the medical procedure, misoprostol still costs $100 with a prescription, double that without, again preventing impoverished women from having easy access to even relatively safe methods of abortion. Without plausible access to any medical remedies for unwanted pregnancy, women of lower socioeconomic status in Argentina are left to crude techniques using household objects such as knitting needles or drinking herbal concoctions to self-abort. Not only are these methods dangerous, but they are not guaranteed to work, effectively eliminating a woman’s bodily autonomy and ability to make conscious decisions regarding the trajectory of her future.

Argentina’s current president, Mauricio Macri, while himself adamantly against legalizing abortion, has encouraged unprecedented discussions to be opened in Congress regarding a potential change in the law, as well as publicly stating his intention to sign a law legalizing the procedure if it reaches his desk. As of March 6, the discussion around abortion has cracked open in Argentina, with a bill proposing the legalization of abortion in the first 14 weeks of a pregnancy backed by more than 70 pro-choice lawmakers. Simply having this discussion is a major victory for women in Argentina, but it remains unclear if politicians opposed to the legalization of abortion will choose to advocate for women’s rights to accessible and safe medical care or remain cemented in the outdated, oftentimes religiously motivated ideas impeding the progression of safe health care for women. As the discussion progresses, it is imperative that lawmakers in Argentina are able to separate their personal feelings, much like Macri has publicly agreed to do, from their political decision making and sign a law legalizing abortion in order not only to show their commitment to lowering maternal mortality due to preventable reasons but to show their commitment to improving women’s rights in Argentina.

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