Abortion is no longer a crime in Colombia. Alicia Yamin, who heads up Harvard’s Global Health and Rights Project, discusses the hemispheric impact of the recent Colombian Constitutional Court decision to decriminalize abortion in that country.
June Carolyn Erlick:
Alicia Yamin, leads Harvard's Global Health and Rights Project. She teaches at the Harvard law school in the TC Chan, school of public health, as well as being an affiliated faculty member at the department of social medicine at the Harvard medical school. Columbia's constitutional court recently struck down a law that had made abortion of a crime, except in a few limited incidences. Could you tell us about that please?
Alicia Yamin:
Sure. So the [Casa Khussa 00:00:48] movement, which is a coalition of dozens and dozens of different groups brought a case to the constitutional court. They were seeking the full decriminalization of abortion previously in Columbia, under a ruling by the constitutional court. In 2006, abortion was only legal under three conditions. One, when the life or health of the mother was at risk. Second, when the pregnancy was the result of rape, and third, when there were congenital anomalies inconsistent, incompatible with life. So this broad social movement brought a case to decriminalize expand abortion access in Columbia and the court didn't decriminalize entirely, but went a very long way, decriminalizing it through 24 weeks of gestation. And importantly, those three conditions also apply after the 24 weeks of gestation.
June Carolyn Erlick:
Could you explain to our listeners what the difference is between decriminalization and legalization?
Alicia Yamin:
Sure. So decriminalization means that women cannot be prosecuted and providers cannot be prosecuted for providing abortions. Legalization means that the state will regulate the access to abortion under a number of different vehicles.
June Carolyn Erlick:
So what does this mean for disadvantaged women? Elite women have long had the privilege of just going to a private doctor and doing a clandestine, but very safe abortion.
Alicia Yamin:
So I think that's a really important point because we know that criminalization of abortion does not produce fewer abortions and it really just drives them underground. And as you rightly point out, wealthy women, elite women have access to getting abortions under safe and sanitary conditions, both within private clinics in Columbia, really, and also outside of the country. But the criminalization of abortion was really primarily affecting young women, disadvantaged women, women from rural areas that don't have that benefit. Now, they will be free and available to women throughout Columbia.
June Carolyn Erlick:
That's a very important step, but what do you think the implications of this decision are for other countries in the region?
Alicia Yamin:
Well, this decision really has to be seen in the context of a larger Green Wave, which I think began in full with the legalization of abortion in Argentina through the first trimester up to 14 weeks of pregnancy in December of 2020. And that was done through legislation. And then in Mexico, just this last year, the Mexican Supreme court decriminalized abortion as well in a very important decision. So this movement really needs to be seen as of feminists and women's rights movements, but also LGBTQ movements across the region claiming a deeper democracy. Latin America has been known for vast socioeconomic inequalities that are reflected in access to health in many ways, gender inequality, unrepresented democracies, and this movement I think is more than just about a single procedure, a reproductive autonomy, but really about claiming people's dignity and equality in society.
June Carolyn Erlick:
Could you talk to us a little bit more about the history of this movement?
Alicia Yamin:
There's a strong women's rights and feminist movement in Columbia going back decades and decades, but the Casa Khussa movement was formed just a few years ago. It's a broad coalition of civil society groups that include both local groups and providers as well as international groups like the center for reproductive rights and women's link. And the ruling in the constitutional court is of course exceptionally important, but they've also generated a social conversation around abortion. So they've brought this concept and question which is so often in the shadows, taboo stigmatized into public debate. And that I think is also something that we learned from Argentina, because that's very much what happened in Argentina in the process of building a broad national campaign around the right to a safe and free abortion.
June Carolyn Erlick:
The Columbia has historically been much more conservative socially than either Argentina and Mexico. What kind of resistance did this movement face?
Alicia Yamin:
Oh, it faced steep resistance. I submitted a friend of the court brief in the case in amicus curiae and there were a flood of motions to called [inaudible 00:06:13] emotions to deprive the court of being able to see this case. And I think there will continue to be steep resistance in implementation. I think we'll see challenges to the issuance of regulations and protocols in the ministry of health. So I think there absolutely will be continue to be very sharp resistance. Politicians have come out since the ruling on both sides frankly.
June Carolyn Erlick:
Could you walk us through a bit about how this might work on the ground on how this resistance might affect a disadvantage woman's ability to get an abortion despite the fact it's been decriminalized?
Alicia Yamin:
Broadly in abortion law, what the formal law is only part of what determines women's access to the service. There are, of course, in the United States, for example, we have an enormous discrepancy between legal rights and access, even before what looks like our legal access. Our legal rights are about to change in a dramatically regressive way, but in all contexts, there are informal rules. So as I said before this ruling, there were these three exceptions to criminalization, but interpretation of those exceptions can be really quite subjective.
Alicia Yamin:
What is a threat to the health of the woman? Does that include mental suffering and mental distress? For example, how severe does a physical threat have to be? There can be kinds of delays and bureaucratic hurdles. There can be background rules that affect how much information if a woman gets. And often women don't know the circumstances under which they have a right to claim the abortion. So all of those background and informal rules very much shape actual effective access to the procedure. Because the formal law has now changed, that's not like flipping a switch and all of those background and informal norms immediately fall away. There's going to need to be a massive amount of sensitization and awareness raising and really different kinds of education and training of providers to see themselves as guaranteeing women's rights and the rights of persons who just date and not gatekeepers on this procedure.
June Carolyn Erlick:
Do you have any sense of how this is playing out on the ground, whether this women's movement has put into place, these kind of educational tools?
Alicia Yamin:
First of all, as far as I know there have already been a few abortions, for example [inaudible 00:09:16], which is an NGO, a pro women's rights NGO in Bogota that has already provided. So it is happening and the Casa Khussa movement has feminist physicians and providers as well, who have been working within the health system for a while. But this is now going to take on a very different dimension in the advocacy and action.
June Carolyn Erlick:
There are now three major countries, Mexico, Argentina, and Columbia, which are givings abortion rights to women. What does this mean for the rest of Latin America?
Alicia Yamin:
Well, they're three of the most populous countries and there are also three countries that often lead trends in the region. So I think we're going to see the Green Wave spreading. We've already seen some indications in Ecuador, I think in the constitutional assembly in Chile, we're going to see reproductive rights and then more work around that. And I would expect to see movement also in other countries around the region that are harder because this is a very contextual fight, but I would expect depending on what the political configurations are in Brazil, I would expect to see movement there. Uruguay of course already has, legal abortion the first trimester.
Alicia Yamin:
Peru has a very strong and vibrant women's movement, but has had a very complicated, it's a conservative judiciary and a complicated political context. So I would expect to see that this is going to move throughout the region and strengthen. And there are networks of both legal academics. There's a very important network called [RELALAs 00:11:08] of female feminist law professors and scholars that have helped develop comparative law and strategic arguments. The movements around abortion rights are also quite connected in the region as are of course the anti movements.
June Carolyn Erlick:
There are a few countries, particularly El Salvador, which have absolutely draconian laws regarding abortion. Do you think this Green Wave will have any effect there?
Alicia Yamin:
The short answer would be, yes, I do, but maybe in a more indirect way. So the Inter-American court of human rights recently issued a judgment in a case called Manuela versus El Salvador. And in that case, they found that the prosecution of this woman for infanticide, for what was probably a spontaneous abortion and then obstetric violence was absolutely inconsistent with obligations under international law. After that judgment, a number of women who were being prosecuted in El Salvador have subsequently not been prosecuted. So the Green Wave is not just a linear process of country by country, but there's a plexus in which this argumentation is happening and supernational forums like the Inter-American court and UN treaty monitoring bodies are an important part of that. So I do see it having an effect in Central America, although in a somewhat different way.
June Carolyn Erlick:
That's very interesting. So you sort of, as I hear you correctly have two tandem movements. One is the feminist Green Wave and the other is a body of international human rights law. Is that correct?
Alicia Yamin:
So I wouldn't say they're in tandem. I would say they're deeply intertwined and recursive and each of them affect the other in terms of strategic movement and yeah.
June Carolyn Erlick:
Yeah. Many of our listeners are here in the United States and I personally find it ironic that as the United States, increasingly faces growing restrictions on abortion Latin and is increasingly knocking down barriers. Do you have any inkling on why this is happening? Why this dichotomy?
Alicia Yamin:
Well, I think both of them as I said, I think the Green Wave is really about deepening democracy in the region. It's not just about one health service. It's about the health system as a social institution that reflects dimensions of social equality and inclusion and women and persons who just state need to have access to the services they need. I think in the United States, we're seeing serious efforts to de democratize, to restrict access to reproductive health, but also in many other domains, we've seen limitations on democratic rights in this country that, from voting rights to other kinds of healthcare, for transgender persons, for example. So I think the two are quite related and one is a very unfortunate trend toward de democratization towards exclusion of certain people as less than full members of community and society. And the other is a trend, a real effort, an initiative in a region. Again, that's marked by very profound socioeconomic inequalities to deepen that and expand that inclusion.
June Carolyn Erlick:
So you are on the board of directors of Women in Global Health. What other challenges are there for women, particularly for women in Latin America in the near future?
Alicia Yamin:
I also, by the way, am on the oversight committee, the projectomy it had which does oversight of the legislation in Argentina that legalized abortion. I am on the International Advisory Board of the Argentine Safe Abortion Access Network. And I have family in Argentina and I did my doctorate at the UBA, but in terms of what are the challenges that women face in Latin America, I mean, it is a profoundly unequal social context. I think we've seen in the pandemic that neoliberal policies that have been imposed for decades had a really profound impact, both in terms of COVID deaths. But also we saw the shadow pandemic, we saw a displacement of access to sexual and reproductive health services. It's a region that has in very high prevalence of violence against women, sharp divisions in unremunerated care burdens and women being more in the informal economy. So there are a number of different what I would characterize as broadly political economy questions to really address for women to have gender justice in Latin America.
June Carolyn Erlick:
Do you see the Green Wave as championing any one of these issues, for example, political violence against women as not after the abortion issue, but a priority together with the abortion issue?
Alicia Yamin:
Oh, it definitely has been. The NiUnaMenos movement in Argentina really was very synergistic with the expansion of abortion. And that was very important in Argentina and debunking this idea that people who support abortion rights are somehow a dissident movement or just a group of elitist, the NiUnaMenos movement to combat femicides and violence against women was a very, very broad, popular social movement in Argentina and still exists, obviously.
June Carolyn Erlick:
So are you optimistic about the future of women in Latin America?
Alicia Yamin:
I am. I'm optimistic because women in Latin America are really showing that they are among the pioneers and agents of change in the region.
June Carolyn Erlick:
You've been listening to Alicia Yamin. She leads Harvard's Global Health and Rights Project. She teaches at the Harvard law school in the TC Chan school of public health, as well as being an affiliated faculty member at the department of social medicine at the Harvard medical school. Thank you for taking time with us.
Alicia Yamin:
Thank you very much.