Argentina has announced it will drop criminal charges against women accused of having abortions following the government’s historic decision to legalise the procedure.
The announcement offers hope to the mostly poor and marginalised women facing criminal sanctions. But lingering problems such as obstetric violence and sexism in the justice system show the struggle for reproductive justice is not over, according to campaigners.
The new law, passed on 30 December, allows abortion for any reason during the first 14 weeks of pregnancy, making Argentina the largest country in Latin America to broadly allow the procedure. It explicitly covers anyone with the capacity to gestate, including transgender and non-binary people.
It marks a major win for women’s rights in a region where the Catholic church has a strong influence.
Women rarely spent years in prison on abortion charges in Argentina, but there have been some horrifying exceptions. In the conservative province of Tucumán, Belén (not her real name) spent nearly three years behind bars after suffering a miscarriage before a team headed up by feminist lawyer Soledad Deza managed to have her conviction overturned.
“Those almost three years that I was in prison were a very painful time for me, because it was horrible to be a prisoner for something I hadn’t done,” said Belén in a written statement.
And even when hospitals don’t report patients to the police, women seeking treatment for abortion sometimes find themselves on the receiving end of cruel and degrading treatment.
Analía Ruggero went to a hospital on the outskirts of Buenos Aires at the age of 22 when she suffered complications from an abortion she had self-induced using pills. When the doctors found out that she’d had an abortion, they initially refused to treat her, but they also told her that if she went elsewhere, she could get an infection and die. Eventually, Ruggero was admitted but, as they worked, the medical staff whispered insults at her. “The nurse was injecting me and saying under her breath, ‘You had an abortion! You’re trash, who do you think you are coming here?’”
Afterwards, Ruggero was left to recover on a bed with no sheets or blankets in a corner of the ward that was crawling with cockroaches.
Ruggero was overjoyed at the new law. “Now if the first nurse I come to doesn’t want to do it, there’s a line of medics behind her who are willing to do it,” she said.
It is unclear how many women will have their cases dismissed as a result of the new law. One recent report – by Argentine human rights group Cels, abortion rights campaigners and San Martín University Centre – identified 1,532 abortion cases in the past eight years that could potentially be covered. But not all provinces replied to the researchers’ request for information, and other campaigners say the total is probably substantially higher.
“All those women who have been criminalised … will have the benefit that their cases will be dismissed, because there’s a retroactive application of the most favourable criminal law,” said Argentine minister for women, gender and diversity, Elizabeth Gómez Alcorta.
Campaigners are now demanding an investigation into the issue of women who may have been prosecuted for a more serious crime, such as murder, after having an abortion.
The Cels report identified several women serving lengthy jail sentences for crimes such as aggravated homicide after experiencing obstetric problems such as stillbirths and miscarriages late in their pregnancies. Most were extremely poor.
María Laura Garrigós, subsecretary of penitentiary affairs at Argentina’s ministry of justice, said it was possible that there are women in prison for murder after having abortions, especially in Argentina’s more conservative northern provinces, although these cases are generally well past the 14-week limit. “It’s a question of interpretation – of when the foetus stops being a foetus,” she said. “Generally, this is jurisprudence that comes from men,” she said. “Judges in general tend to be men.”
Now, the challenge will be ensuring that women’s legal right to decide about their bodies will be upheld in practice. “I know women who’ve been working towards this for 50 years. Those structures aren’t just going to rest, they’re going to keep struggling to solve this kind of problem,” Garrigós said. “This is progress that we’re making against the patriarchy.”