Notes: Redefining LGBTQ and Abortion Rights in Latin America: A Transnational Toolkit.

• Author: Julian, Alyssa

ABSTRACT

Throughout Latin America, the Lesbian, Gay, Bisexual, Trans, and Queer (LGBTQ) and abortion rights movements have progressed at divergent strengths and speeds, with significant variation among countries. The region is home to some of the most restrictive and discriminatory laws when it comes to these contentious issues. This Note explores some of the reasons behind the variation in LGBTQ and abortion rights throughout the region.

This Note traces the economic and political history of Latin America to illustrate the climate in which these social movements are operating. Further, this Note offers a brief snapshot of recent global developments in LGBTQ and abortion rights, paying close attention to how the United Nations and the Inter-American Court of Human Rights define and protect said rights. This Note provides a case study on the LGBTQ and abortion rights movements within Argentina, Uruguay, and El Salvador because these countries exemplify the immense variation in laws concerning LGBTQ rights and reproductive rights throughout Latin America. By extrapolating lessons from each country, this Note creates a "transnational toolkit" for law and policy change, which can be adopted and adapted to fit each country's unique socioeconomic and political climate. If applied effectively, the toolkit can help bring abortion rights up to speed with LGBTQ rights in Latin America and establish uniformity in human rights across the region.

TABLE OF CONTENTS I. INTRODUCTION II. BACKGROUND A. What are the "rights" at issue? B. Country Selection C. Regional Political Climate D. Regional Economic Growth E. The World Stage on LGBTQ Rights F. The World Stage on Abortion Rights II. ANALYSIS A. The Power of Public Opinion 1. Public Opinion on Same-Sex Marriage 2. Public Opinion on Abortion B. Theories of Change: Judicialization versus Legislation C. Comparing LGBTQ and Abortion Rights across Argentina, Uruguay, and El Salvador 1. Argentina 2. Uruguay 3. El Salvador III. SOLUTION A. Building a Transnational Toolkit: What Works 1. Combined Judicial and Legislative Advocacy 2. Building Off a Public Health Crisis 3. Consolidating Advocacy Coalitions 4. Forging Alliances 5. Embracing Setbacks 6. Right Place, Right Time Phenomenon 7. Framing the Fight 8. International Outcry as a Platform B. The Toolkit in Practice IV. CONCLUSION I. INTRODUCTION

In 2015, a pregnant fourteen-year-old Argentinian girl was forced to take abortion-inducing medication following an alleged dispute with her boyfriend about the baby. (1) Her boyfriend and his mother then buried her alive. (2) This was not an isolated act of violence. (3) Each year, millions of women throughout Latin America are put in danger due to restrictive abortion laws. (4) Similarly, many LGBTQ individuals throughout the region are denied fundamental rights and legal protections, leaving them vulnerable to discrimination and violence.

Latin America (5) generally lags behind other regions in terms of abortion (6) and LGBTQ rights. (7) On the whole, Latin America is socially and religiously conservative, due in part to the enduring influence of authoritarian regimes throughout the region. (8) LGBTQ rights and women's reproductive rights are often framed as social and moral issues, with conservatives generally arguing that legalizing same-sex marriage and abortion would "demoralize" society and disrupt the traditional notions of a "natural family." (9)

Across the region, LGBTQ rights have largely progressed with more strength and speed than abortion rights, particularly over the last decade. (10) In 2009, Mexico City became the first Latin American jurisdiction to legalize same-sex marriage and adoption by same-sex couples. (11) Argentina followed suit and in 2010 became the first Latin American country to legalize same-sex marriage. (12) Since then, LGBTQ rights have continued to develop at a relatively rapid pace, with numerous Latin American countries and subnational governments legalizing same-sex marriage (13) or civil unions between homosexual couples. (14)

In November 2017, a noteworthy regional development in LGBTQ rights came when the Inter-American Court of Human Rights (Inter-American Court) (15) ruled in an advisory opinion that same-sex couples should be recognized and guaranteed "all the rights that are derived from a family bond between people of the same sex" along with access "to all existing forms of domestic legal systems." (16) The Attorney General's Office of Costa Rica (the requesting party) declared that the opinion is binding upon Costa Rican judges. (17) Although advisory opinions are nonbinding as to other parties, they set binding precedent in future contentious cases (18) and establish baseline human rights standards that can instruct domestic policy making. As of 2018, nineteen Latin American countries had accepted the compulsory jurisdiction of the Inter-American Court; thus, it can be expected that many of these countries will adopt measures in order to comply with the court's recent opinion. (19)

In contrast, abortion laws in Latin America remain among the most stringent worldwide. Abortion is banned under all circumstances in Nicaragua, Honduras, El Salvador, the Dominican Republic, Suriname, and Haiti. (20) Other countries permit abortion in limited circumstances, including: (1) in order to save the life of a woman, (21) (2) to preserve the physical health of a woman, (22) (3) to preserve the physical or mental

health of a woman, (23) or (4) for socioeconomic reasons. (24) Some countries also allow abortions in cases of rape, (25) incest, (26) or fetal anomaly. (27) In only four countries are abortions permitted without restriction as to reason; thus elective abortions are only available to 3 percent of women in Latin America and the Caribbean. (28)

Although they are illegal altogether or allowed with limited exceptions in most countries, abortions in Latin America are commonplace. (29) From 2010-2014, an estimated 6.5 million induced abortions occurred each year in Latin America and the Caribbean (30)--up from 4.4 million between 1990 and 1994. (31) Latin America has the highest unsafe abortion rate of any region. (32) From 2010-2014, only one in four abortions in Latin America and the Caribbean were considered "safe," and nearly 760,000 women in the region are treated annually for unsafe abortion complications. (33) Unsafe abortions and their related complications are evolving into public health crises. Developing countries, in particular, must address these crises quickly and effectively, so that economic and social growth is not stunted. (34) Further, in several Latin American countries, abortion is in practice criminalized, and women seeking abortions and their doctors face significant prison sentences. (35)

Despite the fact that there is "significant overlap and ideological affinity between the struggles for LGBT[Q] rights and women's rights in most places," the two movements have actually progressed at considerably divergent speeds and strengths. (36) This Note will analyze why abortion rights have lagged behind LGBTQ rights in Latin America. Through evaluating the successes and failures of each movement, this Note will offer suggestions as to how the abortion rights movement can gain momentum and match the successes of the LGBTQ movement. Part II will define the "rights" at issue within each movement. It will also provide a generalized description of Latin America's political and economic history and an overview of some pivotal international developments relating to LGBTQ and abortion rights. Specifically, this Note traces the influence of key institutions on domestic policies, such as the Catholic Church, (37) the United Nations (UN), and the Inter-American Court.

Although this Note paints a broad picture of law and policy throughout the region, it will focus narrowly on the laws of three select countries to evaluate the underlying issues promoting or hindering progress within these movements. Part III will first evaluate the role of public opinion in social policy making at a regional level and then provide an in-depth evaluation of the laws, social groups, and political dynamics in Argentina, Uruguay, and El Salvador. This Note will appraise the strategies of key activist groups in these three countries, paying great attention to how each issue is framed (e.g., human health and safety, justice, and legal equality). Part IV will focus not only on what the reproductive rights movement can learn from the LGBTQ rights movement within Latin America but also on what lessons both movements can adopt from other countries across the globe. Ultimately, this Note will provide a "transnational toolkit" for social and legal change that can be adopted and adapted to fit each country's unique socioeconomic and political climate, with the end goal of establishing some uniformity in human rights across the region.

2. BACKGROUND

   1. What are the "rights" at issue?

      While the focus of this Note is to compare the legality of same-sex marriage and civil unions to the legal status of abortion in Latin America, the terms "LGBTQ rights" and "abortion rights" and their respective social movements are multifaceted. Besides relationship rights, the LGBTQ community also advocates for other fundamental human rights, such as decriminalization of sexual activity, adoption rights, the ability to openly serve in the military, antidiscrimination, gender identity privileges, and protection from hate crimes. (38) The term "abortion rights" generally concerns access to legal abortion services, (39) but the term also encompasses a woman's right to healthcare, privacy, safety, and autonomy. (40) Activists and policymakers within each country may have a different end goal; therefore, no singular path or model for shaping law and policy will be successful throughout the entire region. However, broad strategies for law and policy reform can be extrapolated from the...