Restrictive Laws and Their Consequences for Women’s Rights

The existence of restrictive legislation on abortion and the resulting stigmatization of women that resort to this practice leads many of them to abort in clandestine, usually unsafe conditions (Centro de Derechos de Mujeres, 2004).

The penalization of abortion leads to the stigmatization of this practice, even in cases permitted by law. Legal restrictions also influence public health structures, since they prevent the creation of a favorable environment that will enable health professionals to receive the necessary training to deal with abortion cases and clinics and hospitals to use internationally accepted abortive procedures. This affects women health and may also pose a threat to the lives of the many women who are obliged to abort in unsuitable conditions. The attitude of health personnel and the insufficient supply of medical services make it impossible to provide women with adequate or good quality abortion services (World Health Organization, 2004). Similarly, “Many health professionals refuse access to a safe abortion to women who qualify for the legal exceptions, because they lack precise knowledge of the relevant legal norms” (Organización Mundial de la Salud, 1998).

Abortion legislation in most Latin American countries violates women’s human rights as well as contradicting health professionals’ medical and ethical codes. It also encourages sharp contradictions within the medical profession, since legal regulations have no relation to reality. According to one of the studies mentioned earlier, carried out in Chile but representative of Latin America, “The laws penalizing abortion not only violate women’s reproductive rights, but also her right to health, freedom, security and potentially her right to life.” The same study shows how “denouncing women that decide to abort, the abortion providers and other accomplices also violate other human rights which, like those mentioned earlier, are also protected by international instruments, such as the right to due process, privacy, legal defense and professional secrecy” (p. 8) (Centro de Derechos Reproductivos, and Foro Abierto de Salud y Derechos Reproductivos, 1998).

These restrictive laws encourage inequity in gender relations, since they only penalize women, and not the men who have an equal role in the origin of the pregnancy (Centro de Derechos de Mujeres, 2004).

Legal barriers to abortion are compounded by the prominence of political and religious institutions and certain pressure groups that force many women to resort to clandestine abortions (Becker et al., 2002). Being obliged to obtain permission from one or more doctors to perform the abortion or to submit a declaration to the police in the event of rape are other barriers preventing access to abortion. A study undertaken in Mexico (Erviti et al., 2005) describes how doctors “morally evaluate” women they treat for abortion, tending to submit them to humiliating interrogations in which they implicitly criticize their conduct.

At the same time, imprisoning women that seek abortion, in the few Latin American countries where restrictive laws are enforced, produces further adverse consequences, both for those that are tried and for their families. In Chile, where “abortion is penalized under any circumstance, studies on this issue show that imprisonment creates a certain stigma that affects the woman personally and socially, since it leads to the loss of her self-esteem, loss of employment, eviction due to the landlord’s convictions and taunting by her colleagues at work, among other effects” (p. 49) (Casas Becerra, 1996). This study adds that “the woman’s imprisonment also affects her children, who have to be taken in by relatives or sent to boarding school. The children of women that are arrested usually display behavioral problems as a result of the ensuing family instability” (p. 97) (Casas Becerra, 1996). The study also indicates that denunciations of women that abort or those involved in the procedure violates other human rights, such as rights to due process, privacy, legal defense and professional secrecy. Casas Becerra points out that, of the cases considered in her study, only 37% of the women and half the abortion providers put on trial were proven guilty. But for those who are indeed convicted, the sanctions imposed may include an average of 41 days for imprisonment for the women and 133 days for the medical personnel that attended them (Casas Becerra, 1997). It is important to note that, as mentioned earlier, the punishment is never applied to the man responsible for the pregnancy, only to the woman and/or the abortion provider.

Another violation of women’s rights, which contradicts health professionals’ code of ethics, is the breach of professional confidentiality. This reflects the social injustices prevailing in Latin America. In the vast majority of cases, denunciations are only made against poor women, who, for financial reasons, only have access to public medical services. This situation is manifested particularly crudely in El Salvador, where a penal code was passed in 1998 punishing all forms of abortion, including the interruption of a pregnancy to save the woman’s life. This has led to an increase in the number of denunciations submitted by health personnel against women suspected of having had an abortion (McNaughton, 2004). In public hospitals in Chile, frequented mainly by disadvantaged women, over three quarters of the abortions performed were denounced to the police, while women from higher economic strata have access to procedures in which respect for their confidentiality is usually guaranteed (Casas Becerra, 1997). Conversely, in Mexico, not only are denunciations by doctors rare, but illegal abortions are registered as miscarriages (Rayas and Catotti, 2004; Rayas et al., 2004). In fact, a text dealing with the need to change the legislation on this issue (GIRE, 2006) points out that during the period from 1991 to 2001 in Mexico, only 51 condemnatory sentences were passed for abortions, despite the fact that according to figures from The Alan Guttmacher Institute, over 533,000 illegal abortions are performed annually in that country. A similar situation prevails in Uruguay, where the number of trials for causes related to abortion is very small (0.2% of all crimes tried) meaning that only 0.04% of all the illegal abortions performed are penalized. However, in the population’s imagination, there is still a “fear of denunciation” (Sanseviero, 2003).

The refusal to perform abortions on those that do not wish to continue with a pregnancy has disastrous consequences, raising, among other things, the problem of accepting the unborn child. This fact becomes even more important when the right to abort is denied to a woman who has been the victim of rape or incest, as borne out by the cases of Paulina and Rosa, and a Bolivian girl, among many others (Farmer, 2000; Gómez et al., 2000; Grupo de Información en Reproducción Elegida, 2000; Lamas, 2000.Taracena, 2002). Preventing a woman from interrupting a pregnancy due to the above circumstances violates her dignity as a person as well as the free exercise of her rights.

In Mexico, the mechanism for obtaining legal authorization for an abortion after a rape is extremely bureaucratically complex, and, according to studies on the issue, only 22% of pregnant women in this situation have had access to a legal abortion. This fact indicates that access to abortion due to rape is largely limited by doctors’ refusal to perform an abortion. It is also due to the fact that women navigating the complex legal requirements to request the abortion exceed the period of pregnancy during which it can be interrupted without significant risks (Lara et al., 2003). Neither the government nor the Catholic Church nor those opposed to the decriminalization of abortion assume responsibility for the education or support of the children women are obliged to bear (GIRE, 2003). This is why it is obvious that restrictions on abortion, even in the cases permitted by law, primarily affect women.

As mentioned earlier, the usually illegal nature of abortion violates women’s right to obtain access to safe health care, particularly among those belonging to the poorest social strata. Several studies in the region show that a restrictive, punitive legal framework affects the quality of health services where abortion complications are dealt with, because there is always the threat that those intervening in the interruption of a pregnancy will be legally sanctioned (Llovet and Ramos, 2001).

As several authors point out, women suspected of having had an abortion are often the object of mistreatment or indifference from health professionals. The punitive attitudes many of them assume towards women that abort is not only linked to the stigma regarding the interruption of pregnancy or its legal prohibition; the mistreatment in general received by women at public hospitals is also related to the generalized subordination of women, their precarious financial situation, and the unequal power relationships that tend to be established between doctors and patients (González de León et al., 2002).

In certain countries in the Latin American and Caribbean region, there have been legal modifications to facilitate access to abortion. This is the case in Barbados and Guyana, where admissions to hospital for abortion complications were drastically reduced as a result of changes in the legislation on this issue during the 1990s (Anonymous, 2005; Nunes and Delph, 1997). However, a mere change in the legal framework does not suffice to enable women to fully exercise their reproductive rights, including that to having safe abortion services. In Puerto Rico, where abortion was liberalized in 1973 because of its status as an Associated Free State of the United States, many women, particularly the poorest ones, continue to think that interrupting pregnancy is forbidden. Likewise, abortion services in this Caribbean nation are still insufficient (Azize Vargas and Avilés, 1997). Apropos of this, Mundigo says that the substantial support should be provided for health services to ensure that abortion laws are actually enforced in countries where they have been liberalized (Mundigo and Indriso, 1999).

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