Pregnancy, Femicide, and the Indispensability of Legalizing Abortion: a Comparison Between Argentina and Ireland

• Citation: Vol. 34 No. 3
• Publication year: 2020
• topic: Criminal Law

Pregnancy, Femicide, and the Indispensability of Legalizing Abortion: A Comparison Between Argentina and Ireland

Agustina M. Buedo

PREGNANCY, FEMICIDE, AND THE INDISPENSABILITY OF LEGALIZING ABORTION: A COMPARISON BETWEEN ARGENTINA AND IRELAND

Introduction

Although Argentina has relatively high levels of education, strong civil-society groups, and a long history of feminist activism, the country remains stagnant on change regarding women's rights, specifically, reproductive rights.¹ Among the long-standing human rights problems in Argentina is the "endemic violence against women, restrictions on abortion, [and] difficulty accessing reproductive services."² Argentine law considers abortion a crime with the exception of two narrowly defined circumstances: (a) if the abortion is carried out with the purpose of averting risk to the mother's life or health when that risk cannot be averted by any other measure; or (b) in the case of the rape of a mentally disabled woman.³ This kind of law perpetuates both the cultural and institutional restraints surrounding abortion that are "paradigmatic of how women's bodies are socially regulated in Argentina."⁴

Restricting abortion has severe implications—more violence against women. The United Nations, and other human rights organizations have, in recent decades, focused their attention on a specific form of violence, gender-based violence.⁵ Explicitly, femicide is generally characterized as the murder of

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women because they are women.⁶ Femicide rates in Latin America are among the highest in the world.⁷ Sadly enough, femicide is portrayed as tragic "yet ultimately to be expected" within Latin America.⁸ Femicide can be linked specifically to pregnant women who could not get an abortion and continued facing violence from the man involved in the pregnancy, which ultimately then resulted in their death; the legalization of abortion could potentially reduce the rates of femicide of pregnant women and can definitely reduce the amount of violence against women.

Interestingly, a common stereotype specific to Latin America is that motherhood is an "expected, celebrated, idealized, and naturalized role for women . . . ."⁹ However, it is difficult to reconcile this conceptualization of motherhood in Latin America with the fact that one of the leading causes of death among pregnant and post-partum women is murder by an intimate partner.¹⁰ In fact, in most gender violence and femicide cases, the killer was the partner or former partner of the victim.¹¹ Femicide is an important yet "often unreported" cause of maternal mortality and there exists a link between abuse during pregnancy and attempted and completed femicides.¹²

Denying the legalization of abortion will have detrimental effects to the women of Argentina, especially pregnant woman. Without this avenue available as a choice, pregnant women face increased chances of becoming victims of femicide or continued abuse victims, since abuse during pregnancy and unwanted or unplanned pregnancies have been linked with femicide occurrences.¹³ In fact, studies have shown there specifically exists a connection between violence and access to abortion.¹⁴ The rates of violence by the man

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involved in a pregnancy decreased among women who were able to have an abortion but remained consistent for women who continued their pregnancies to term.¹⁵ Terminating an unwanted pregnancy may allow women to avoid physical violence from the man involved in the pregnancy, while having the baby from an unwanted pregnancy results in sustained physical violence over time.¹⁶ Demographer Diana Greene Foster, who studies the effects of unintended pregnancies on women's lives, found that "being unable to have the abortion tethered women to violent men, while women who have the abortion were more able to escape abusive relationships."¹⁷ Policies restricting abortion may result in more women's inability to terminate unwanted pregnancies, potentially keeping them in contact with violent partners, and putting women at risk of femicide.¹⁸

Violence against women is influenced by a number of different factors operating at four different levels: (a) individual; (b) familial relationships; (c) community; and (d) a societal or structural level relating to laws, policies, and broader societal influences.¹⁹ As discussed below, the link between pregnancy and femicide is clear; this Comment argues that the legalization of abortion can have positive impacts in reducing the risk of pregnant women facing femicide and violence.

This past decade has been accompanied by a series of progressive reforms in Argentina, such as gay marriage, transgender rights, and sexual education policies.²⁰ In fact, before 2018, abortion was not a topic of conversation in Argentina, mainly due to "a combination of lack of political will and opposition from the influential Roman Catholic Church, fighting on Pope Francis' home turf."²¹ Argentina's conservative President, Mauricio Macri, although

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personally opposed to legalization, said Congress needed to debate the abortion issue and stated he would sign the bill legalizing abortion into law if Congress passed it.²² A wave of support from activist groups in Argentina rallied and marched throughout the summer of 2018 while the legislature debated the bill. But on August 9, 2018, after sixteen hours of deliberation, Argentina's senate narrowly rejected the "Interrupción Voluntaria del Embarazo" bill.²³ This bill would have allowed women to terminate their pregnancy during the first fourteen weeks.²⁴

In a region where 97% of women live in countries where abortion is illegal, banned, or allowed only in very rare instances, Argentina's legalization would have set an example and marked a mile stone for women's rights in Latin America.²⁵ In Latin America, abortion is strictly prohibited in six countries, while nine other countries allow it almost exclusively to save the woman's life, with a small number of those countries offering limited exceptions for rape (Brazil, Chile, and Panama).²⁶ Currently, abortion is legal without restrictions in only three places in Latin America: Cuba, Uruguay, and Mexico City.²⁷ Experts estimate that about 14 million unintended pregnancies occur in Latin America and the Caribbean each year, almost half (46%) of which end in abortion.²⁸ Considering the law and numbers presented, women are turning to illegal methods which can result in serious health consequences. Whatever is behind the current impasse in law reform for women's benefit—"whether it is called stigma, misogyny, religion, morality, or political cowardice—few, if any, existing laws on abortion are fit for purpose."²⁹

Recently, Ireland repealed their constitution's Eighth Amendment which criminalized abortion as punishable by up to fourteen years in prison.³⁰ Like

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Argentina, Ireland is a predominantly Catholic country that has for years criminalized abortion with even stricter standards than Argentina. Yet, Ireland was able to repeal its amendment, and the Irish government is currently planning to bring legislation before the Dáil, the lower house of the Irish legislature, requesting an abortion period up to the twelfth week of pregnancy.³¹ Argentina, however, remains at the starting line.

This Comment suggests that Argentina can learn from Ireland and their current journey of attempting to codify the legalization of abortion. This Comment proposes that Argentina follow Ireland's lead and re-propose legislation to legalize abortion. This would be a slightly easier situation than Ireland's because the Argentine Constitution contains nothing about the criminalization of abortion.³² Argentina would, however, have to alter the Código Penal [Criminal Code] of Argentina which currently criminalizes abortion.³³ Legalizing abortion would not only expand women's rights, but it would also reduce the rates of femicide and violence against women in the country, which have been increasing every year since 2014.³⁴

This Comment proceeds in the following order: Part II provides an overview of Argentina's recent decision to deny legalizing abortion and provides an in-depth explanation of the denial's consequences. Part III focuses on the history and factors influencing women's rights in Latin America and the new grassroots activist movement that has sprung up in Argentina to fight for women's rights. Part IV analyzes Ireland's past and current situation as a point of comparison and explains how Ireland has advanced thus far after recently repealing an amendment in their constitution that criminalized abortion. Part V introduces the proposals and legal arguments as to why Argentina should follow Ireland's footsteps while Part VI summarizes the proposals suggested throughout this Comment and provides an overall conclusion to the issue at hand.

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I. Argentina's Recent Denial of the Bill Legalizing Abortion

In June 2018, supporters of the "Interrupción Voluntaria del Embarazo" bill to legalize abortion and women's rights activists scored an unexpected victory when the lower house of the Argentine Congress, the Chamber of Deputies, narrowly approved the bill allowing women the option to terminate their pregnancy.³⁵ Longstanding Argentine law allows abortions only in cases of rape or when a mother's life is in danger.³⁶ Even in those circumstances, it remains extremely rare; high standards are imposed to avoid abortions happening at all.³⁷ In response to an information request from Amnesty International, the province of Buenos Aires reported that from 2010-2015 there were 612 legally permitted abortions within its jurisdiction.³⁸ The number is miniscule when compared to the estimated 500,000 clandestine abortions carried out in Argentina per year.³⁹

The bill the Senate debated would have allowed abortion procedures during the first 14 weeks of pregnancy while still maintaining the health and rape thresholds for procedures after the first...