On December 30th, 2020, the Argentinean Congress legalized abortion up to the 14th week. In this way, Argentina became one of the few Latin American jurisdictions where abortion on demand is legal during the first stages of gestation, joining Cuba (1965), Guyana (1995), Uruguay (2012), Colombia (Constitutional Court 2022) and ten Mexican states (starting with Mexico City 2007). Its legalization in Argentina took place after the rising of the so-called green tide in 2018, which transformed the longstanding movement for abortion rights in the country into a mass phenomenon, and the abortion issue, which used to be a taboo, into a main topic of public discussion. The new law has been challenged through judicial actions without success so far, and it has changed the conditions for the implementation of lawful abortions throughout the country. In this article, I first describe the main aspects of the new law, and then address the advancements and obstacles for its implementation in a federal system where most abortion services depend on subnational health authorities. Finally, I analyze the strengths of the movement that has allowed for this legal change to become a reality in a country that grants the Catholic Church constitutional prerogatives and is the homeland of the current Pope, and in a region that still has some of the most restrictive abortion laws in the World.
An Inclusive Abortion Law
The new law establishes the right to the voluntary termination of pregnancy as well as to access to abortion services and post-abortion care up to and including the 14th week of the gestational process. After that period, abortion continues to be a criminal offense typified in the penal code, and the law keeps standing the legal indications for abortion included in article 86 of the country’s criminal code since 1921 (rape or risk to life or health of the pregnant person). In the new law, the subject of rights are women and persons with other gender identities able to become pregnant. This is in line with previous legal developments that expanded LBGTIQ+ rights in the country, in particular the Gender Identity Law approved in 2012.
The law mandates that the practice must be performed free of charge and within a maximum term of 10 days, at the medical centers of the healthcare system, which includes the public system, union-owned healthcare providers, and the private system. In contrast to the requirements established, for example, in Uruguay’s legal framework, the law does not include a waiting period or mandatory counseling as a condition to access abortion services. Persons who seek an abortion must provide informed consent. Those who are over sixteen years of age are granted full capacity on their own to consent, while persons under thirteen years old require the assistance of at least one parent or legal representative, and (according to Article 26 of the Nation’s Civil and Commercial Code) those between thirteen and sixteen years old are presumed to have sufficient aptitude to give due consent, unless a procedure involving a serious risk to their health or life is necessary, in which case they need the parent or representative assistance (conflicts in this regard must be resolved on grounds of the child’s best interest, based on medical opinion).
The law authorizes conscientious objection by health care workers directly intervening in terminations of pregnancies, in cases that do not require urgent medical care, and under two main conditions: that health care workers keep their decision in all spheres where they practice their profession (whether public, private or union-owned), and that they refer the patient to another professional without delay. The law does not allow for institutional conscientious objection. It establishes that those private and union-owned health care facilities that do not count on personnel available to perform an abortion due to conscientious objection, shall provide for referral to another health center which can timely perform the procedure. All administrative proceedings and costs related to the referral and relocation of the patient shall be borne by the institution making the referral.
In conjunction with the abortion law, the National Congress approved a Law on Comprehensive Attention and Healthcare during Pregnancy and Early Childhood, the so-called 1,000 Day Plan, which has among its main purposes the prevention of maternal and childhood mortality, by providing pregnant persons and mothers of young children financial assistance as well as access to a series of rights and resources during the entire pregnancy and the child’s first three years of life.
Successful implementation and the challenges of Argentina’s federalism
In Argentina -as in other Latin American countries with the exception of Mexico- abortion laws are determined at the national level, given that the main Codes (Civil, Commercial, Criminal, etc.) are sanctioned by the National Congress. However, under the country´s federal system, the provinces intervene in the regulation of the procedures for the local implementation of national laws. Furthermore, since the decentralization process that in the 1990s transferred the funding and administration of the health sector to subnational governments, most of the costs of health services are covered by the provinces. These institutional arrangements have allowed for territorial inequalities in the implementation of national norms on sexual and reproductive rights since they started to be enacted in 2002. More specifically, the implementation of lawful abortions under the model of indications in place since 1921 had been systematically challenged and obstructed. In 2012, a decision by the national Supreme Court in the so-called F.,A.L case aimed at ending the legal controversy around non-punishable abortions and urged subnational authorities to issue protocols for their implementation. The ruling was a key milestone in the struggle for the liberalization of abortion laws in Argentina, and it was instrumental for the formation of health care teams and networks that have worked on the provision of lawful abortions over the past decade across the country. However, the Supreme Court’s landmark decision was unequally enforced throughout the national territory, due to conservative judicialization and resistance by subnational authorities to comply with it.
In this context, the implementation of the new abortion law has met with important obstacles, while at the same time showing signs of a turnaround in the direction to overcoming the historical difficulty to make abortion rights in the books a living reality in Argentina. The implementation of the law has met with According to a comprehensive research report by expert organizations in this field, among the main indicators of significant progress are: a) the expansion, visibility and legitimacy of abortion services and health teams working in this field, which during this period have received professional training as well as legal advice; b) a significant increase in providing drugs to the public health system for the purpose of medication abortions (specially misoprostol and increasingly also mifepristone, which is available since its approval by the national health authority in June 2022); c) the increasing rights consciousness by pregnant persons, both of their right to decide and to have access to abortion services; d) the availability of official data about the practice of abortion throughout the country.
As for the main factors explaining the successful implementation of the law, beyond subsistent obstacles, the mentioned report, as well as other sources, point out the fact that the abortion bill had been widely discussed before its approval, given the massive feminist mobilization behind it. This all contributed to the public knowledge about the law. In addition, the preexistent presence of teams of health professionals who practiced lawful abortions throughout the country, formed especially after the Supreme Court F.,A.L. decision, provided an initial infrastructure and expertise for implementation. Other main factors were the overall political support by subnational health authorities and the commitment by the National Ministry of Health, which has provided medical supplies and equipment as well as training and legal advice to health professionals. The existence of a strong feminist movement with a federal structure, which was a main factor for the legal change, has been also crucial in the implementation process.
A diversified and massive movement with a federal organization
The law was the result of more than three decades of mobilization for abortion rights in Argentina. As in most countries in the region, the movement for abortion rights started after the end of military dictatorships, in the mid-1980s. Along its development, it became an inter-sectorial, inter-class and inter-generational movement, which also has a strong territorial insertion throughout the country. Since 2005, its backbone is the National Campaign for the Right to Legal, Safe and Free Abortion, formed by more than 300 organizations, among them feminist groups, unions, human rights organizations, and diverse political and cultural associations, with a presence throughout the country. The Campaign´s core strategy was political mobilization and legislative lobbying, and its main aim was the legalization of abortion by the National Congress. Since 2006, it worked in drafting a bill, which was submitted eight times to the Deputies Chamber between 2007 and 2019, and was discussed by Congress only in 2018 –when it was approved by the Lower Chamber and defeated in the Senate. Besides legislative lobbying for the approval of the bill, and given the historical difficulties to implement lawful abortions and the fact that the political process was closed to this demand, the movement developed a series of diverse strategies, which have been present also in other countries in the region, including actions based on public health research, legal activism, training of public officials, popular education and communication, and direct action to facilitate access to information and abortion medication.
One of the main characteristics of the movement for abortion rights in Argentina, and the key for its organizational structure and expansion has been its aspiration and capacity to include wider social collectives and demands, beyond the initial mobilization by feminist activists from urban, middle-class sectors. The decision by its forerunners to situate the abortion rights demand within the wider women’s movement provided the organizational basis for the construction, over time, of a movement with a federal, horizontal and multi-sectorial structure. It should be noted in this regard that the women´s movement in Argentina has as its main organizational instance the National Women’s Encounters, which take place each year since 1986, gathering more than 50,000 participants in the latest ones. Furthermore, at the beginning of the 21st Century the movement was able to include women from popular organizations and incipient popular feminist mobilization, in the context of the economic breakdown and the social uprising that took place in 2001-2002 in the country. More recently, in 2015, the emergence of the movement Ni Una Menos against femicides transformed feminist mobilization into a mass phenomenon, with a notable presence of new generations. Its initial claim was soon connected to the abortion rights demand, under the idea that the abortion ban was violence against women. Finally, the movement gradually incorporated the demands of LGBTIQ+ activism, in particular its recognition as subjects of rights in the proposed bill, and also as protagonists of the struggle for abortion rights.
To sum up, the legalization of abortion in Argentina points to the importance of civic activism to achieve legal change and to allow for a successful implementation of the law, notwithstanding enduring resistances and obstacles. The implementation of the law was facilitated by the previous experience in the provision of lawful abortion services, although only after legalization there was a real change in the possibility of an effective application of the law in the books.