Since 2020, reproductive justice movements in several Latin American countries have seen remarkable progress—Mexico and Colombia have recently decriminalized abortion, and Argentina has fully legalized the procedure. This progress toward reproductive justice, termed the “Green Wave” or Marea Verde, stands in contrast to the recent United States Supreme Court decision in Dobbs v. Jackson Women’s Health Organization. At an Oct. 21 event sponsored by the Petrie-Flom Center’s Global Health and Rights Project and the David Rockefeller Center for Latin American Studies, panelists explored the major historical events that served as catalysts for this Green Wave and potential lessons these movements might hold for abortion rights activists in the United States.
In her opening remarks, Alicia Ely Yamin (JD’ 91; MPH ‘96), a lecturer on law and the senior fellow on global health and rights at the Petrie-Flom Center, emphasized that the success of reproductive justice advocates in Latin American countries did not materialize overnight.
Like other coalitions across the world, said Yamin, “Feminists in Latin America have been pushing for abortion rights really since the 1970s.”
The movement saw incremental progress during a series of successive campaigns designed to both push institutional actors and destigmatize abortion: Yamin specifically highlighted efforts in Argentina beginning in 2005, when feminists reframed abortion restrictions as an issue of structural violence against women and deliberately linked the movement to other anti-violence movements.
Yamin cautioned the audience against drawing simplistic conclusions from the recent progress in reproductive justice in Latin America, where constitutional structures reflect different social and economic norms, and enshrine a different set of rights.
“The universe of norms on which the [Latin American] courts draw is quite different from the United States,” said Yamin. “So, this is not a cut-and-paste situation.”
Panelist Justice Alfredo Gutiérrez Ortiz Mena (LL.M. ‘98) of the Supreme Court of Mexico gave remarks at the event tracing the progress of the reproductive justice movement in Mexico, beginning with the Ley Robles, or the Robles Law, which Gutiérrez Ortiz Mena said refocused the abortion conversation on women’s health.
“The Ley Robles, basically, what it did was expand justifiable defenses on a statutory level in order to avoid criminal conviction of abortions,” Gutiérrez Ortiz Mena said. “And the new justifiable defense was health.”
In 2011, Mexico amended Article One of its Constitution such that it automatically incorporated all international human rights treaties to which Mexico is a part, and in September 2021, a pair of unanimous decisions by the Mexico Supreme Court decriminalized abortion and established a constitutional right to free, safe access to the procedure.
Under this new regime, amparos, suits in federal court in which plaintiff seek to assert a constitutional right, began emerging. “For the first time, you start seeing amparos where individuals, women, are starting to assert their rights, in court, on a constitutional basis,” Gutiérrez Ortiz Mena said. “The discussion now in the court isn’t a statutory discussion about justification defenses in criminal convictions. It’s about whether women have constitutional rights, and that is a whole other dynamic; that’s an entirely different language.”
In Colombia, early discussions on abortion largely revolved around religious and moral values, said panelist Justice Natalia Ángel Cabo (LL.M. ‘01) of the Constitutional Court of Colombia.
In 1994, a law imposing a three-year prison sentence for abortion was challenged and upheld, said Ángel Cabo, on the basis that “pregnancy resulted in a creation of a separate being of the woman whose conservation and development could not be limited by the free will of the woman.”
However, Colombia saw a gradual change in the abortion debate at the beginning of the 21st century: Feminist organizations in the country led a media campaign reframing abortion not as a moral or religious issue, but as a health issue.
At this time, advocates abandoned efforts to decriminalize abortion through the legislature and instead began filing lawsuits to decriminalize abortion, starting with exceptional cases.
“Basically, this was the first high-impact litigation in the country,” said Ángel Cabo.
In 2006, the Colombian court declared for the first time that a full ban of abortion in the criminal code was unconstitutional, marking what Ángel Cabo called “one of the first decisions in the world to uphold abortion rights on public health grounds.”
In a landmark decision in 2022, the Colombia Constitutional Court decriminalized abortion under 24 weeks. Since the decision, Ángel Cabo points out that there are 67 active writs to the Colombian Constitutional Court seeking annulment of this decision.
“So, the question of whether and under what circumstances the law protects a woman’s right to terminate a pregnancy in Colombia are questions that will continue to confront us in the years to come,” said Ángel Cabo.
Mary Ziegler, a professor at UC Davis School of Law and a leading legal historian on the history of abortion jurisprudence, joined the event via Zoom to discuss changes in United States that may have contributed to recent restrictions on abortion access, including more positive attitudes toward criminalization in the decades since the Roe v. Wade decision.
Ziegler cited figures that the U.S. prison population increased by 600% between 1960 to 2000. During this period, said Ziegler, various social movements “framed criminalization not only as something that didn’t violate rights, but that in fact enhanced rights.”
“The anti-abortion movement, I think, was able to successfully leverage that argument in Dobbs to suggest that criminal laws were far from constitutionally anathema,” said Ziegler. “They were part of a deeply rooted history and tradition in the United States of sanctioning and even incarcerating wrongdoers in the name of protecting victims, including fetuses.”
In closing, Ziegler offered her perspective on how international reproductive rights advancements relate to the rollback of abortion rights in the United States. “I think the story that both of the justices told you was a story about changes to democracy in Mexico and Colombia, and I think the same is true in the United States,” said Ziegler. “If you’re looking at how and why the United States is moving in another direction, it too is a story about changes to American democracy.”
The panel was hosted by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. The panel was moderated by Professor I. Glenn Cohen (JD ‘03), James A. Attwood and Leslie Williams Professor of Law and Faculty Director of Petrie-Flom Center and Alicia Ely Yamin (JD ‘91; MPH ‘96), Lecturer on Law and the Senior Fellow on Global Health and Rights at the Petrie-Flom Center.
For a recording of the full event, please visit: https://www.youtube.com/watch?v=JR_vaiBm_J4
For an interview with Alicia Ely Yamin following the event, please see the below document.
For upcoming events at at the Petrie-Flom Center, please visit: https://petrieflom.law.harvard.edu/events
[pdf-embedder url=”https://hlrecord.org/wp-content/uploads/2023/02/Interview-with-Alicia-Yamin-Abortion-in-Mexico.pdf” title=”Interview with Alicia Ely Yamin”]