May 23, 2022

“The struggle of the women with the green scarf”: What’s next for Latin America’s “green wave” of abortion rights?

By Agustina Ordoqui

Florencia D. was 18 when she had her abortion. « I knew as soon as I saw two little lines on the test: I didn’t want to be a mother, not at that moment and not with that partner,” she says.

She had to do it in secret. This was Argentina in 2007, and there was no law allowing her to terminate her pregnancy any other way.

It took two attempts: Florencia first took abortion pills she bought for a few pesos out of someone’s bathroom, but the dosage was insufficient. A few days later, she fell ill and went to an emergency room, where she was told she was still pregnant.

Her next attempt to end the pregnancy took place at a clandestine private clinic, using borrowed money. The fear of someone knowing that she had had an abortion stayed with her for years.

I have known Florencia for a long time, but it was only on December 30, 2020 that she dared to share her story with me, and with the world, on social media. On that day, Congress passed a law on the voluntary termination of pregnancy: a pregnant person can now have a free and legal abortion in any hospital in Argentina up to 14 weeks.

« Healing came with feminism, with the struggle of the women with the green scarf. That’s when I knew I wasn’t the only one who felt that way, » she says.

The “women with the green scarf” are the legion of feminists across Latin America who have doggedly fought for the legalisation of abortion in a part of the world where it was until recently almost entirely inaccessible. In September 2021, the Mexican Supreme Court paved the way for national decriminalisation with a landmark decision. In February this year, Colombia’s Constitutional Court endorsed the decriminalisation of abortion up to 24 weeks, the most progressive law in Latin America so far.

Argentina’s victory has been one of the most emblematic in the region. It was here where the Campaña Nacional por el Derecho al Aborto Legal, Seguro y Gratuito – a coalition of human rights organisations and long-standing feminist activists – began to organise in the early 2000s. The activists chose the colour green for their fight at the National Women’s Congress in 2008, because it wasn’t associated with any other rights campaigns at the time. From there, the marea verde (green wave) began to build, eventually sweeping the continent and reaching as far as the US border.

Days after the approval of the Argentine abortion law, a group of feminists in Patagonia approached the border with Chile with megaphones and shouted: “Chilenas, don’t put down your flags – we are ready to cross the Andes! »

In the neighbouring country, abortion has been legal under three grounds – in cases of risk to life, foetal inviability, or when the pregnancy is the result of rape – since 2017. Last year, congress debated implementing a law similar to Argentina’s, which would make the procedure available on demand, but it was rejected.

Yet Chilean activists have found another way to guarantee abortion rights: via a new constitution. The current constitution, drafted in the 1980s under Augusto Pinochet’s dictatorship, makes no mention of sexual and reproductive rights and includes the word « woman » only once. But after a wave of protests against inequality in 2019, the government agreed to appoint a gender-equal body of citizens to rewrite Chile’s foundational document. The text was finalised this month, and includes a guarantee of sexual and reproductive rights, and therefore access to abortion. It will be submitted to a referendum in September.

The fight for feminists is now in winning that vote. Camila Maturana Kesten, a lawyer and abortion rights campaigner, says she is not discouraged by the latest polls which suggest voters may reject the new draft.

« The constitutional right to abortion has raised alarm among conservatives,” she says. “There is a lot of concern among citizens, which is understandable in times of profound change. But a new state is being defined, in which the focus is on the protection of people and equal rights. If we can show this, instead of the fears, we will probably win their approval. »

Latin America’s green wave is the direct opposite of the backwards trajectory on abortion rights in the United States. According to a leaked copy of a draft majority opinion, the US Supreme Court is planning to vote to overturn Roe v Wade, the decision that effectively legalised abortion in the 1970s. At the same time, various Republican-led states such as Arizona, Florida and Kentucky have passed legislation that dramatically restricts access. If Roe v Wade is overturned, 13 states have “trigger laws” in place that will automatically ban or heavily restrict abortion.

Many protesters in the US have used the same shade of green popularised by the marea verde in their protests against the putative Supreme Court decision. Activists are now looking to a future in which travelling to Mexico could be an alternative for many Americans who can no longer access abortion in their home states.

In Mexico, feminists have had a string of successes in securing abortion rights. The recent Supreme Court ruling did not automatically legalise abortion, but declared the criminalisation of the procedure to be unconstitutional, setting a precedent against prosecution in those states where it is considered a crime.  In the meantime, individual states, including Veracruz, Hidalgo, Baja California and Sinaloa, have passed local laws to decriminalise abortion. Guerrero has now been added to this list after the state legislature approved new abortion regulations on May 17.

If the marea verde has been swift and powerful in toppling abortion restrictions, there still is much more territory to be covered in Latin America and the Caribbean. Only eight countries in the region allow free access to abortion, three of which – Argentina, parts of Mexico and Colombia – have recently made it available only recently. In Uruguay, abortion has been legal up to 12 weeks since 2012. The list is completed by Guyana, French Guiana, Puerto Rico and Cuba.

Ecuador made modest progress in February, when congress passed a bill allowing abortion in cases of rape, which was later modified by President Guillermo Lasso to restrict the time limit to 12 weeks and on the condition of a formal criminal complaint.

In countries such as Guatemala, Paraguay, Peru and Venezuela, abortion is illegal except under certain grounds, usually risk to the pregnant person’s life. Bolivia also considers rape or incest grounds for abortoin, while Brazil and Panama include non-viability of the foetus.

The situation is most critical in Central America and the Caribbean: El Salvador, Haiti, Honduras, Nicaragua and the Dominican Republic all have a total ban on abortion, with prison sentences both for those who have abortions and those who help others to do so.

The most prominent example is El Salvador, where a recent ruling by the Inter-American Court of Human Rights recommended that women who were imprisoned for having abortions or miscarriages be freed. The recommendation was made after the court ruled that the Salvadoran state was guilty in the death of “Manuela”, a woman who lost her pregnancy and died in prison after being convicted of having an alleged illegal abortion. Despite this precedent, another woman, “Esme” was sentenced to 30 years in prison for miscarrying just this month.

Yildalina Tatem Brache (in the middle with a green t-shirt) during a demonstration for the campaign #LasCausalesVan in Dominican Republic

According to the Agrupación Ciudadana por la Despenalización del Aborto, 181 women have been imprisoned in the last 20 years on charges of having had an abortion in El Salvador. The US also has a record of imprisoning women for losing pregnancies, a problem activists fear will be significantly exacerbated by the end of Roe v Wade.

In the Dominican Republic, activists set up an encampment in front of the National Palace last year for 73 consecutive nights to demand the decriminalisation of abortion. The Dominican Assembly is currently working on drafting a new penal code, but for the moment it has not modified the article that establishes the total criminalisation of abortion.

« We’ve requested the executive branch to review the code so it recognises at least the right when the woman’s life is in danger, when the pregnancy is the consequence of rape or incest, or when it has a malformation incompatible with life,”  says lawyer Yildalina Tatem Brache, a member of the campaign #LasCausalesVan. “It is the minimum acceptable.”

For activists still fighting for change in the Dominican Republic, as in El Salvador, and throughout Latin America, green is the prevailing colour in the campaign for abortion access.

« Women’s progress in other countries is always a starting point for making progress in those that are lagging behind,” Brache says.

All over the continent, there is a phrase that accompanies the green bandanas waved in protest and in victory by feminist activists. It is a phrase that is increasingly becoming a fact: « Será ley » – “It will be law”.

— Agustina Ordoqui is an independent journalist based in Buenos Aires, Argentina.