Latin America’s Rights Riddle

Why the region says yes to same-sex marriage and no to abortion.

Activists in favor of the legalization of abortion dressed as characters from "The Handmaid's Tale" protest in Buenos Aires, on August 5, 2018. (Alejandro Pagni/AFP/Getty Images)
Activists in favor of the legalization of abortion dressed as characters from "The Handmaid's Tale" protest in Buenos Aires, on August 5, 2018. (Alejandro Pagni/AFP/Getty Images)

In Latin America, progressive politics present something of a mystery: As LGBT rights have flourished, women’s reproductive rights have floundered. Earlier this month, for example, a bill to legalize abortion in the first 14 weeks of pregnancy was defeated in the Argentine Senate. This is the same body that in 2010 made Argentina the first Latin American country to legalize same-sex marriage with identical rights to heterosexual marriage. And since that historic milestone, Argentina has enacted one of the most liberal laws on gender identity to be found anywhere in the world. Its code allows people to change the gender listed on their legal documents without a diagnosis of gender dysphoria or permission from a judge, as is required in most countries. The country has also granted same-sex couples reproductive rights, such as access to in vitro fertilization under the national health plan, and has banned programs that aim to “cure” same-sex attraction.

The trend of LGBT rights outpacing reproductive rights is not unique to Argentina. In recent years, a rights revolution in Latin America has wiped out all remaining laws criminalizing homosexuality; the last of such laws to fall was Panama’s, in 2008. Same-sex marriage and civil unions are legal in Argentina, Brazil, Chile, Colombia, Costa Rica, Ecuador, Uruguay, and several Mexican states. Most countries in Latin America have also enacted laws banning discrimination on the basis of sexual orientation (and in Mexico and Chile, it was even right-wing governments that did so). In the midst of all this history-making progress, the liberalization of abortion has lagged significantly. If anything, in some countries, the picture for abortion rights is bleaker than ever.

Save for in Cuba, Mexico City, and Uruguay, it remains a crime in Latin America in most circumstances for a woman to terminate a pregnancy. The region is also home to four of the six countries in the world where abortion is banned in all circumstances: El Salvador, Nicaragua, Honduras, and the Dominican Republic (the two other countries are Malta and Vatican City). Chile exited this club only last year, when it began allowing abortions under very limited circumstances, but Brazil could take its place soon via a constitutional amendment. The toll on Latin American women is staggering. Punishment is rare but not unheard of. Since 1998, more than 150 women in El Salvador have been prosecuted for illegal abortions. The pro-abortion rights Guttmacher Institute reports that between 2010 and 2014, one in four of the 6.5 million abortions performed annually in Latin America was unsafe, the highest among all regions.

It’s hard to make sense of these events. In the developed West, women’s rights movements have typically anticipated, if not actually ushered in, LGBT rights advances, including same-sex marriage—and there’s significant overlap and ideological affinity between the struggles for LGBT rights and women’s rights in most places. All the more puzzling is that, in recent decades, women have seized political power across much of Latin America as part of the so-called pink tide, the wave of noncommunist left-wing governments that have swept the region in the last several decades. Not that long ago, several of South America’s top economies were led by women: Cristina Fernández de Kirchner of the Peronist party governed Argentina from 2007 to 2015, Dilma Rousseff of the Workers’ Party led Brazil from 2011 until her impeachment in 2016, and Socialist Michelle Bachelet had two turns as president of Chile—from 2006 to 2010, and from 2014 to 2018. So, what gives?

Conventional wisdom points to the Roman Catholic Church, a longtime arbiter of social policy in Latin America. In recent years, the Catholic Church has become more open to homosexuality and more closed to abortion. Pope Francis, who hails from Argentina, famously noted that “If a person is gay and seeks out the Lord and is willing, who am I to judge?” His 2014 synod on the family suggested that the church should create a more inclusive space for LGBT Catholics, and he has also signaled some support for same-sex civil unions.

On the other hand, the Vatican has hardened its opposition to abortion, sensing, perhaps, that the struggle for abortion has been lost in the developed West but could still be won in the global south. The pope fiercely opposed the May referendum to legalize abortion in Ireland. More recently, he compared modern-day abortion practices to Nazi-era eugenics policies, and he left no stone unturned to stop the bill from earlier this month that would have liberalized Argentina’s abortion law. Francis apparently reached out to Argentine legislators personally to push them to oppose the measure. Pedro Guastavino, a pro-abortion rights senator, told the BBC that the pressure from the Catholic Church was so relentless that he had to “dodge crucifixes.”

But Catholic opposition to abortion can’t be the only factor. After all, the Catholic playbook that was used to defeat the abortion law in Argentina is the same one that spectacularly failed against same-sex marriage. In 2010, while he was archbishop of Buenos Aires, Francis characterized it as a “destructive attack on God’s plan.” The Argentine Conference of Bishops threatened to excommunicate any legislator who voted in favor of legalizing same-sex marriage, and it mobilized thousands of Argentine Catholics against the bill. But the Argentine Congress, a body overwhelmingly populated by Catholics, approved same-sex marriage anyway.

Three other factors provide a more satisfying explanation for the divergent fates of LGBT rights, particularly same-sex marriage, and abortion rights in Latin America. The first one is the curious phenomenon of pinkwashing, or the cynical use of momentum on LGBT rights to either distract from unsavory political behaviors or to disguise lack of progress in other areas, such as women’s reproductive rights. Critics of Fernández, such as Fernando Laborda, a columnist at La Nación, viewed her fierce embrace of same-sex marriage in 2010 as a naked act of political opportunism. As she was approaching re-election in 2011, Fernández, who had never before endorsed same-sex marriage, needed to rally progressive voters in Buenos Aires and to distract the nation from the scandals that surrounded her. Since leaving office, in 2015, she has been indicted on charges of defrauding the state out of some $5 billion dollars.

A more ignoble example of pinkwashing comes from Nicaragua under the leadership of current President Daniel Ortega. In 2008, the Ortega administration reformed Nicaragua’s penal code in a way that simultaneously decriminalized homosexuality while also imposing an abortion ban deemed by human rights organizations as “a cruel, inhuman disgrace.” It bans abortion regardless of the circumstances, including cases of rape, incest, a deformed fetus, or the mother’s life being threatened. When discussing passage of this reform, the Ortega administration and its allies in the Nicaraguan parliament, many of them with close ties to Catholic and Evangelical leaders, focused almost exclusively on touting the country’s growing tolerance of the LGBT community.

Pinkwashing is, of course, made possible by the fact that support in Latin America for LGBT rights, particularly same-sex marriage, has in recent years skyrocketed, making politicians want to be on the winning side of the issue. For instance, when same-sex marriage was legalized in Argentina, it enjoyed the support of almost 60 percent of the public. The same is not true of abortion. But a less apparent reason for the viability of pinkwashing as a political strategy is related to the second reason LGBT rights have zoomed pass abortion rights: their emergence as a priority for international organizations, transnational human rights groups, foreign philanthropies, and the major Western powers active in Latin America.

Amnesty International and Outright Action International (formerly known as the International Gay and Lesbian Human Rights Commission) have made LGBT rights a priority of their activism in Latin America. Their key strategy has been to name and shame those countries that violate the human rights of the LGBT community. Amnesty’s report from the 1990s, Breaking the Silence: Human Rights Violations Based on Sexual Orientation, put a spotlight on discrimination and often-lethal violence against gay, lesbian, bisexual and transgender people in Latin America. During the 1990s, Outright was successful in getting victims of violence, especially from Argentina and Brazil, political asylum in the United States and Canada. And this January, the Inter-American Court of Human Rights based in San José, Costa Rica, ruled in favor same-sex marriage, a decision that’s binding on 20 Latin American and Caribbean countries.

After Spain became the first overwhelmingly Catholic nation to legalize same-sex marriage, in 2005, it made LGBT rights a focus of its Latin America policy. And no country received more attention than Argentina. Spanish government officials traveled to Buenos Aires to lobby Argentine legislators in favor of same-sex marriage, and leading Spanish rights organizations provided financial and tactical advice to Argentine activists. As one activist told me: “We learned everything from the Spaniards.” For much of the U.S. President Barack Obama’s time in office, especially while Hillary Clinton was at the helm of the State Department, the U.S. pursued “gay rights diplomacy” across Latin America, intended to pressure countries to end discrimination and grant civil rights to the LGBT population.

Support for women’s rights, especially abortion, by international organizations and foreign governments pales by comparison. The Inter-American Court of Human Rights has never unambiguously backed abortion or reproductive rights. The United States, reflecting the polarizing politics of abortion there, has been playing football with reproductive rights in Latin America for decades. Since 1973, it has been illegal to spend any U.S. tax dollars funding abortions abroad. In 1984, the Reagan administration introduced the Mexico City policy (often referred to as the global gag rule), which blocks use of federal funds for organizations that provide either abortion services or abortion counseling and referrals. The policy has been lifted by Democratic administrations and then reinstated by Republican ones.

Most recently, the Mexico City policy was reinstated by the Trump administration. And this time, it became more draconian than ever by going beyond family planning and into the much broader area of global health assistance. This tightening came at the insistence of the U.S. Evangelical movement, which in recent years has been fueling a culture war over abortion and same-sex marriage in places where the religious movement is strongest in Latin America: Central America and Brazil. This explains why abortion restrictions in Latin America are strongest in El Salvador, Honduras, and Nicaragua.

Third, LGBT rights have taken a front seat to abortion rights because of the effectiveness of activists narrowly focused LGBT rights. It is hard to think of a more successful social movement in contemporary Latin America than the LGBT movement, at least as far as its capacity to rally the base, to lobby policy-makers, and to craft messages that resonate with the public at large. There’s much irony in this success. What many once thought was a liability for the movement—being small—in the end proved to be an asset. With fewer people involved, Latin America’s LGBT movement has been able to be more cohesive, disciplined, and nimble than other social movements. For instance, divisions within the LGBT community on the desirability of same-sex marriage did not prevent it from coming together to press the message that excluding same-sex couples from the institution of marriage was a violation of human rights. Aimed specifically at highlighting the particular victimization of LGBT community at the hands of the state, that message resonated most loudly in Argentina, where the military targeted male homosexuals during the country’s infamous Dirty War.

By contrast, it is clear that internal divisions within women’s movement in Argentina and elsewhere over abortion have been a weakness. These were broadly on display during the Argentine Senate vote. Although conservative President Mauricio Macri made it clear that, if the bill was approved, he would it into law, his female vice president and the president of the Senate, Gabriela Michetti, came out against the measure. Indeed, she went as far as saying that in case of a tie she would vote against it. More telling is the vote within the Senate, a body with 30 female senators out of 72. Only half of those who voted approved the measure. Given that the vote was relatively close (31 votes in favor and 38 votes against), greater support by female senators would have made a big difference.

Despite their defeat, abortion activists in Argentina remain optimistic that they will eventually prevail. Many of them look at the same-sex marriage battle as their model for a future victory. When the bill was first introduced in 2007, it failed to gain any traction in Congress. After its defeat, activists focused their efforts on changing hearts and minds. By the time same-sex marriage came up again in 2010, a clear majority of Argentines were in favor of it. And already, there are signs that the women’s movement is taking a similar tack: Massive demonstrations preceded the congressional debate on the abortion bill. They were focused on the tragedy of the murder of a pregnant 14-year-old by her boyfriend. The movement quickly launched a social media campaign to raise awareness about violence toward women with the hashtag #NiUnaMenos (Not one woman less), which went viral all over Latin America. Since then, trying to avoid being considered a single-issue movement, #NiUnaMenos has expanded to include topics such as sexual harassment, transgender rights, and the gender pay gap.

Even in defeat, the abortion vote showed the capacity of social movements to change minds in Argentina. Among the most notable ayes in the Senate in favor of the measure was that of the former president and current senator from Buenos Aires, Fernández, who during her presidency never once allowed any abortion measure to reach the body’s floor. When justifying her yes vote, she said: “If you want to know who got me to change my mind, it was the thousands of young women who took to the streets.”

Omar G. Encarnación is a professor of political studies at Bard College and author of Democracy without Justice in Spain: The Politics of Forgetting.

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