Ackowledging Sexual and Reproductive Rights in Latin American Constitutions

Karim Velasco

Most Latin American countries do not explicitly acknowledge sexual and reproductive rights in their Constitutions. But some Constitutional Courts have still been able to find protection for legal abortion and other reproductive health issues.

The recognition of sexual
and reproductive rights of women is usually a controversial matter in
Latin American Parliaments and Constitutional Courts. It is often
argued by conservative parties and right wing movements that the "so
called sexual and reproductive rights" do not exist as long as there
is no mention of such rights in the Constitutions.

Indeed, only Ecuador
has explicitly included these rights in its Constitutional text. The women’s movement played a key role and managed to include sexual
and reproductive rights in Ecuador’s 1998 Constitution after a remarkably
hard-fought campaign, a significant milestone in Latin America.
That is why, despite the fact that this country is currently working
on a new Constitution, the draft still includes an explicit recognition
of sexual and reproductive rights.

In the case of Bolivia, a Constituent
Assembly, made up of 34% of women, almost half of whom are indigenous women, drafted a new Constitution that will be voted on in a referendum later
this year and that specifically "guarantees women and men the exercise
of their sexual and reproductive rights."

And at a provincial level, it is important to mention the
Constitution of the City of Buenos Aires, whose text acknowledges "sexual
and reproductive rights" as basic human rights.

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For other
Latin American countries such as Brazil, Mexico, Colombia, Peru and Paraguay,
reproductive and/or sexual rights are recognized in their Constitutional
texts (although they are not literally stated) by acknowledging the
range of rights that inform them, i.e. the right of every person to
decide freely and
responsibly the number, spacing and timing of their children
and to have the information and means to do so.

However, in regards to Ecuador and Bolivia, it is interesting to consider what would happen if those countries’ new Constitutions were to omit the expression
"sexual and reproductive rights" from their text, as is the case in most Latin American Constitutions. Would that mean that sexual
and reproductive rights would no longer be considered constitutional rights?
Many argue that it is not essential that constitutional texts literally include the term "sexual and reproductive
rights" since these can be interpreted from the fundamental
rights already stated in Constitutions.

Others argue that it
is necessary to include "sexual and reproductive rights" in the
constitutional texts, in part in order to end the debate with conservative
parties and movements, but also to strengthen the development and implementation
of public policy regarding sexual and reproductive rights issues and to protect these rights from internal struggles within political
parties or changes of the administration in power.

Some Constitutional Courts
— like the Courts in Colombia and Peru — have dealt with cases regarding
sexual and reproductive rights where they have had to interpret their
constitutional texts: the decriminalization of abortion in Colombia and the free delivery of emergency
contraception
in Peru. In the
first case, the Colombian Court’s decision decriminalized the voluntary
termination of the pregnancy based on the violation of women’s rights
to life and dignity for being forced to have an abortion in unsafe conditions.
In the second case the Peruvian Constitutional Court decided that the
Health Ministry failed to comply with a regulation that obliged it to
freely deliver emergency contraception and ordered that it started right
away.

There is no doubt that both decisions do tacitly guarantee and
recognize the legitimacy of sexual and reproductive rights even though they are not quoted in Constitutional texts, but neither of them dares to explicitly
mention these rights as the rights being ultimately protected by these
decisions. It seems to me that despite the amount of international
human rights treaties and bodies that promote and defend sexual and
reproductive rights (to which Latin American countries are State
parties), the Courts will keep on not alluding to them unless they explicitly
see them stated on their constitutional texts.

It is important then,
that although sexual and reproductive rights do not need to be literally
recognized to be protected and guaranteed, Ecuador’s new Constitution
does not take a backward step on this matter, and fully guarantees the
protection of sexual and reproductive rights. Likewise, Bolivia should take a further step and specifically
recognize sexual and reproductive rights at a constitutional level and
not as part of other fundamental rights already recognized, so that
these rights are well noticed and more easily exercised.

Analysis Human Rights

El Salvador Bill Would Put Those Found Guilty of Abortion Behind Bars for 30 to 50 Years

Kathy Bougher

Under El Salvador’s current law, when women are accused of abortion, prosecutors can—but do not always—increase the charges to aggravated homicide, thereby increasing their prison sentence. This new bill, advocates say, would heighten the likelihood that those charged with abortion will spend decades behind bars.

Abortion has been illegal under all circumstances in El Salvador since 1997, with a penalty of two to eight years in prison. Now, the right-wing ARENA Party has introduced a bill that would increase that penalty to a prison sentence of 30 to 50 years—the same as aggravated homicide.

The bill also lengthens the prison time for physicians who perform abortions to 30 to 50 years and establishes jail terms—of one to three years and six months to two years, respectively—for persons who sell or publicize abortion-causing substances.

The bill’s major sponsor, Rep. Ricardo Andrés Velásquez Parker, explained in a television interview on July 11 that this was simply an administrative matter and “shouldn’t need any further discussion.”

Since the Salvadoran Constitution recognizes “the human being from the moment of conception,” he said, it “is necessary to align the Criminal Code with this principle, and substitute the current penalty for abortion, which is two to eight years in prison, with that of aggravated homicide.”

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The bill has yet to be discussed in the Salvadoran legislature; if it were to pass, it would still have to go to the president for his signature. It could also be referred to committee, and potentially left to die.

Under El Salvador’s current law, when women are accused of abortion, prosecutors can—but do not always—increase the charges to aggravated homicide, thereby increasing their prison sentence. This new bill, advocates say, would worsen the criminalization of women, continue to take away options, and heighten the likelihood that those charged with abortion will spend decades behind bars.

In recent years, local feminist groups have drawn attention to “Las 17 and More,” a group of Salvadoran women who have been incarcerated with prison terms of up to 40 years after obstetrical emergencies. In 2014, the Agrupación Ciudadana por la Despenalización del Aborto (Citizen Group for the Decriminalization of Abortion) submitted requests for pardons for 17 of the women. Each case wound its way through the legislature and other branches of government; in the end, only one woman received a pardon. Earlier this year, however, a May 2016 court decision overturned the conviction of another one of the women, Maria Teresa Rivera, vacating her 40-year sentence.

Velásquez Parker noted in his July 11 interview that he had not reviewed any of those cases. To do so was not “within his purview” and those cases have been “subjective and philosophical,” he claimed. “I am dealing with Salvadoran constitutional law.”

During a protest outside of the legislature last Thursday, Morena Herrera, president of the Agrupación, addressed Velásquez Parker directly, saying that his bill demonstrated an ignorance of the realities faced by women and girls in El Salvador and demanding its revocation.

“How is it possible that you do not know that last week the United Nations presented a report that shows that in our country a girl or an adolescent gives birth every 20 minutes? You should be obligated to know this. You get paid to know about this,” Herrera told him. Herrera was referring to the United Nations Population Fund and the Salvadoran Ministry of Health’s report, “Map of Pregnancies Among Girls and Adolescents in El Salvador 2015,” which also revealed that 30 percent of all births in the country were by girls ages 10 to 19.

“You say that you know nothing about women unjustly incarcerated, yet we presented to this legislature a group of requests for pardons. With what you earn, you as legislators were obligated to read and know about those,” Herrera continued, speaking about Las 17. “We are not going to discuss this proposal that you have. It is undiscussable. We demand that the ARENA party withdraw this proposed legislation.”

As part of its campaign of resistance to the proposed law, the Agrupación produced and distributed numerous videos with messages such as “They Don’t Represent Me,” which shows the names and faces of the 21 legislators who signed on to the ARENA proposal. Another video, subtitled in English, asks, “30 to 50 Years in Prison?

International groups have also joined in resisting the bill. In a pronouncement shared with legislators, the Agrupación, and the public, the Latin American and Caribbean Committee for the Defense of the Rights of Women (CLADEM) reminded the Salvadoran government of it international commitments and obligations:

[The] United Nations has recognized on repeated occasions that the total criminalization of abortion is a form of torture, that abortion is a human right when carried out with certain assumptions, and it also recommends completely decriminalizing abortion in our region.

The United Nations Committee on Economic, Social, and Cultural Rights reiterated to the Salvadoran government its concern about the persistence of the total prohibition on abortion … [and] expressly requested that it revise its legislation.

The Committee established in March 2016 that the criminalization of abortion and any obstacles to access to abortion are discriminatory and constitute violations of women’s right to health. Given that El Salvador has ratified [the International Covenant on Economic, Social and Cultural Rights], the country has an obligation to comply with its provisions.

Amnesty International, meanwhile, described the proposal as “scandalous.” Erika Guevara-Rosas, Amnesty International’s Americas director, emphasized in a statement on the organization’s website, “Parliamentarians in El Salvador are playing a very dangerous game with the lives of millions of women. Banning life-saving abortions in all circumstances is atrocious but seeking to raise jail terms for women who seek an abortion or those who provide support is simply despicable.”

“Instead of continuing to criminalize women, authorities in El Salvador must repeal the outdated anti-abortion law once and for all,” Guevara-Rosas continued.

In the United States, Rep. Norma J. Torres (D-CA) and Rep. Debbie Wasserman Schultz (D-FL) issued a press release on July 19 condemning the proposal in El Salvador. Rep. Torres wrote, “It is terrifying to consider that, if this law passed, a Salvadoran woman who has a miscarriage could go to prison for decades or a woman who is raped and decides to undergo an abortion could be jailed for longer than the man who raped her.”

ARENA’s bill follows a campaign from May orchestrated by the right-wing Fundación Sí a la Vida (Right to Life Foundation) of El Salvador, “El Derecho a la Vida No Se Debate,” or “The Right to Life Is Not Up for Debate,” featuring misleading photos of fetuses and promoting adoption as an alternative to abortion.

The Agrupacion countered with a series of ads and vignettes that have also been applied to the fight against the bill, “The Health and Life of Women Are Well Worth a Debate.”

bien vale un debate-la salud de las mujeres

Mariana Moisa, media coordinator for the Agrupación, told Rewire that the widespread reaction to Velásquez Parker’s proposal indicates some shift in public perception around reproductive rights in the country.

“The public image around abortion is changing. These kinds of ideas and proposals don’t go through the system as easily as they once did. It used to be that a person in power made a couple of phone calls and poof—it was taken care of. Now, people see that Velásquez Parker’s insistence that his proposal doesn’t need any debate is undemocratic. People know that women are in prison because of these laws, and the public is asking more questions,” Moisa said.

At this point, it’s not certain whether ARENA, in coalition with other parties, has the votes to pass the bill, but it is clearly within the realm of possibility. As Sara Garcia, coordinator of the Agrupación, told Rewire, “We know this misogynist proposal has generated serious anger and indignation, and we are working with other groups to pressure the legislature. More and more groups are participating with declarations, images, and videos and a clear call to withdraw the proposal. Stopping this proposed law is what is most important at this point. Then we also have to expose what happens in El Salvador with the criminalization of women.”

Even though there has been extensive exposure of what activists see as the grave problems with such a law, Garcia said, “The risk is still very real that it could pass.”

Culture & Conversation Abortion

With Buffer Zones and Decline of ‘Rescues’ Came Anti-Choice Legal Boom, Book Argues

Eleanor J. Bader

University of Denver's Joshua Wilson argues that prosecutions of abortion-clinic protesters and the decline of "rescue" groups in the 1980s and 1990s boosted conservative anti-abortion legal activism nationwide.

There is nothing startling or even new in University of Denver Professor Joshua C. Wilson’s The New States of Abortion Politics (Stanford University Press). But the concise volume—just 99 pages of text—pulls together several recent trends among abortion opponents and offers a clear assessment of where that movement is going.

As Wilson sees it, anti-choice activists have moved from the streets, sidewalks, and driveways surrounding clinics to the courts. This, he argues, represents not only a change of agitational location but also a strategic shift. Like many other scholars and advocates, Wilson interprets this as a move away from pushing for the complete reversal of Roe v. Wade and toward a more incremental, state-by-state winnowing of access to reproductive health care. Furthermore, he points out that it is no coincidence that this maneuver took root in the country’s most socially conservative regions—the South and Midwest—before expanding outward.

Wilson credits two factors with provoking this metamorphosis. The first was congressional passage of the Freedom of Access to Clinic Entrances (FACE) Act in 1994, legislation that imposed penalties on protesters who blocked patients and staff from entering or leaving reproductive health facilities. FACE led to the establishment of protest-free buffer zones at freestanding clinics, something anti-choicers saw as an infringement on their right to speak freely.

Not surprisingly, reproductive rights activists—especially those who became active in the 1980s and early 1990s as a response to blockades, butyric acid attacks, and various forms of property damage at abortion clinics—saw the zones as imperative. In their experiences, buffer zones were the only way to ensure that patients and staff could enter or leave a facility without being harassed or menaced.

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The second factor, Wilson writes, involved the reduced ranks of the so-called “rescue” movement, a fundamentalist effort led by the Lambs of Christ, Operation Rescue, Operation Save America, and Priests for Life. While these groups are former shadows of themselves, the end of the rescue era did not end anti-choice activism. Clinics continue to be picketed, and clinicians are still menaced. In fact, local protesters and groups such as 40 Days for Life and the Center for Medical Progress (which has exclusively targeted Planned Parenthood) negatively affect access to care. Unfortunately, Wilson does not tackle these updated forms of harassment and intimidation—or mention that some of the same players are involved, albeit in different roles.

Instead, he argues the two threads—FACE and the demise of most large-scale clinic protests—are thoroughly intertwined. Wilson accurately reports that the rescue movement of the late 1980s and early 1990s resulted in hundreds of arrests as well as fines and jail sentences for clinic blockaders. This, he writes, opened the door to right-wing Christian attorneys eager to make a name for themselves by representing arrested and incarcerated activists.

But the lawyers’ efforts did not stop there. Instead, they set their sights on FACE and challenged the statute on First Amendment grounds. As Wilson reports, for almost two decades, a loosely connected group of litigators and activists worked diligently to challenge the buffer zones’ legitimacy. Their efforts finally paid off in 2014, when the U.S. Supreme Court found that “protection against unwelcome speech cannot justify restrictions on the use of public streets and sidewalks.” In short, the decision in McCullen v. Coakley found that clinics could no longer ask the courts for blanket prohibitions on picketing outside their doors—even when they anticipated prayer vigils, demonstrations, or other disruptions. They had to wait until something happened.

This, of course, was bad news for people in need of abortions and other reproductive health services, and good news for the anti-choice activists and the lawyers who represented them. Indeed, the McCullen case was an enormous win for the conservative Christian legal community, which by the early 2000s had developed into a network united by opposition to abortion and LGBTQ rights.

The New States of Abortion Politics zeroes in on one of these legal groups: the well-heeled and virulently anti-choice Alliance Defending Freedom, previously known as the Alliance Defense Fund. It’s a chilling portrait.

According to Wilson, ADF’s budget was $40 million in 2012, a quarter of which came from the National Christian Foundation, an Alpharetta, Georgia, entity that claims to have distributed $6 billion in grants to right-wing Christian organizing efforts since 1982.

By any measure, ADF has been effective in promoting its multipronged agenda: “religious liberty, the sanctity of life, and marriage and the family.” In practical terms, this means opposing LGBTQ inclusion, abortion, marriage equality, and the right to determine one’s gender identity for oneself.

The group’s tentacles run deep. In addition to a staff of 51 full-time lawyers and hundreds of volunteers, a network of approximately 3,000 “allied attorneys” work in all 50 states to boost ADF’s agenda. Allies are required to sign a statement affirming their commitment to the Trinitarian Statement of Faith, a hallmark of fundamentalist Christianity that rests on a literal interpretation of biblical scripture. They also have to commit to providing 450 hours of pro bono legal work over three years to promote ADF’s interests—no matter their day job or other obligations. Unlike the American Bar Association, which encourages lawyers to provide free legal representation to poor clients, ADF’s allied attorneys steer clear of the indigent and instead focus exclusively on sexuality, reproduction, and social conservatism.

What’s more, by collaborating with other like-minded outfits—among them, Liberty Counsel and the American Center for Law and Justice—ADF provides conservative Christian lawyers with an opportunity to team up on both local and national cases. Periodic trainings—online as well as in-person ones—offer additional chances for skill development and schmoozing. Lastly, thanks to Americans United for Life, model legislation and sample legal briefs give ADF’s other allies an easy way to plug in and introduce ready-made bills to slowly but surely chip away at abortion, contraceptive access, and LGBTQ equality.

The upshot has been dramatic. Despite the recent Supreme Court win in Whole Woman’s Health v. Hellerstedt, the number of anti-choice measures passed by statehouses across the country has ramped up since 2011. Restrictions—ranging from parental consent provisions to mandatory ultrasound bills and expanded waiting periods for people seeking abortions—have been imposed. Needless to say, the situation is unlikely to improve appreciably for the foreseeable future. What’s more, the same people who oppose abortion have unleashed a backlash to marriage equality as well as anti-discrimination protections for the trans community, and their howls of disapproval have hit a fever pitch.

The end result, Wilson notes, is that the United States now has “an inconstant localized patchwork of rules” governing abortion; some counties persist in denying marriage licenses to LGBTQ couples, making homophobic public servants martyrs in some quarters. As for reproductive health care, it all depends on where one lives: By virtue of location, some people have relatively easy access to medical providers while others have to travel hundreds of miles and take multiple days off from work to end an unwanted pregnancy. Needless to say, this is highly pleasing to ADF’s attorneys and has served to bolster their fundraising efforts. After all, nothing brings in money faster than demonstrable success.

The New States of Abortion Politics is a sobering reminder of the gains won by the anti-choice movement. And while Wilson does not tip his hand to indicate his reaction to this or other conservative victories—he is merely the reporter—it is hard to read the volume as anything short of a call for renewed activism in support of reproductive rights, both in the courts and in the streets.

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