Abortion Rights Lawfare in Latin America

Battles over access to legal abortion in Latin America have become highly judicialized in recent years as the law has become a key battleground for reproductive rights. Prochoice activists throughout the region have successfully pursued strategies ranging from implementation of the existing range of exceptions to criminalization (permitting abortion on grounds of fetal abnormality, rape or women's health), to total decriminalization. The use of the health exception has been a particularly successful regional strategy, and is characterized by sophisticated legal argumentation (balancing fetal rights and women?s rights) and alliances between pro-choice lawyers and health practitioners focused on implementation. Conservative groups opposed to the liberalization of sexual and reproductive rights have used the judicial and legislative fields to press for: - protection of fetal rights from conception (including attempts to ban in vitro fertilization and emergency contraception); - increased restrictions on legal abortion (extending to total criminalization of abortion with no regime of exceptions, even where the woman's life is in danger or the fetus unviable); and the enforcement of harsher penal sanctions, leading to the increased incarceration of women for abortion in some countries. In terms of strategies they now simultaneously focus on national electoral contests and the international sphere. At the same time they have expanded their frames beyond fetal rights to include religious liberty, family rights, and anti-discrimination. The effects of lawfare on abortion deserve special attention on account of the potential implications for gender relations, the dignity, health, autonomy and wellbeing of vulnerable groups, and for social policy. The project's analysis of lawfare dynamics in Latin America points to the complex national and transnational connections between actors on different sides of the abortion wars. It details the strategic use of rights and law by prochoice and countermovement in battles over abortion rights in the region, focusing on movement and countermovement dynamics and the relationships between movement strategies and tactics, legal frameworks and institutional settings. Research analyzed different country cases including Argentina, Brazil, Colombia, Mexico, Peru, and El Salvador, as well as the regional and global dimensions and trends of lawfare around abortion and women's health rights. A timeline of more than 300 key events has been compiled in order to explore regional trends and patterns: http://www.lawtransform.no/timeline/ Research results indicate: (1) there is no clear pattern of backlash - abortion rights lawfare is both cumulative and contingent. The experience of Latin America is significantly different from patterns suggested by research on the USA; (2) the pro-abortion movement in Latin America has been characterized by the broadening and increasing sophistication of strategies of legal transformation; (3) In Latin America the countermovement has focused on the executive and legislative branch, securing constitutional amendments and new laws to restrict abortion rights; (4) as international human rights frames have advanced women's rights to abortion, countermovement actors have adopted diverse rights framings and have built new alliances focused on national electoral contests; (5) local litigation is pursued by pro and anti choice camps; litigation in local courts has favored both expansion and restriction of rights to abortion; (6) public opinion is a key factor and all groups, pro and anti, target public opinion; (7) International forums, such as the UN, have been successfully used by the prochoice camp to advance rights to legal, safe abortion. These forums are now increasingly targeted by conservative groups in their attempts to restrict abortion; (7) litigation at the level of the Interamerican human rights system has favored rights to legal abortion, providing a key resource for transforming legal frameworks into concrete policies that deliver free and safe abortion and contraception services.

The effects of lawfare on abortion deserve special attention on account of the potential implications for gender relations, the dignity, health, autonomy and wellbeing of vulnerable groups, and for social policy. In the majority of Latin America, access t o legal abortion is highly restricted. This project will analyse the strategic use of rights and law in battles over abortion rights in Latin America, and the various effects of this lawfare between opposing groups. We define lawfare as the phenomenon of civil society actors adopting diverse legal and illegal, formal and informal strategies to engage legal institutions in order to further or halt policy reform and social change. Lawfare in various forms has become a central feature of political life in m ost Latin America countries, but the growing scholarship on the interaction between judicial institutions and human rights in the region has mainly focused on socially progressive, rights-expanding forms of lawfare. Taking rights to legal abortion as a po int of inquiry in order to attend to the counter-progressive use of courts and other government institutions, the project will analyse the nature, form, causes and particularly the consequences of lawfare in Latin America, focusing particularly on the cre ation of norms and judicial rulings, their implementation and effects. It will do this through comparison of a range of country-specific cases including Argentina, Brazil, Colombia, Mexico, Peru, El Salvador and two studies analysing regional and global d imensions and trends of lawfare around abortion and women's health rights. Our analysis of the different social, moral and political contexts and opportunity structures at play will pay attention to national and transnational aspects of mobilization, net working and norm diffusion(and reactions to it) amongst Latin America social movements and within different institutions of Latin American states.