Latin American Nations Once Lagged on Abortion Rights: Now Some Present Role Models for the United States

The Supreme Court’s 1973 decision in Roe v Wade seemed to make the United States a hemispheric role model. It was the first country in the Americas to guarantee the constitutional right to abortion at a time when abortion remained criminalized throughout most of Latin America and the Caribbean—and much of the world. The limits of the US model soon became apparent with Congress’s 1976 passage of the Hyde Amendment, which barred the use of federal funds for abortion. In the ensuing years, federal and state laws and Supreme Court decisions further chipped away at the availability of abortion care. Still, even in the early 2000s, abortion remained legal, if restricted, in all US states, while most Latin American countries, except for Cuba, had restrictive bans.

In the 20 years since, Uruguay, Mexico, Argentina, and Colombia have legalized abortion and made it more accessible. Meanwhile, the Supreme Court’s decision in Dobbs v Jackson Women’s Health Organization (2022) has transformed the United States into a volatile patchwork of access and legality. As of June 2024, 14 states ban abortion outright, three ban it after six weeks’ gestation, and four others ban it after 12 to 18 weeks, even as other states have enshrined abortion rights in their constitutions and enacted measures to expand access.^1,2 Recent research indicates that this situation has forced US residents to travel across state lines to access abortion care, to pursue medication abortion via telehealth with an out-of-state provider, or to forgo abortion altogether.²

In this editorial, we review the historical developments that have led to our current predicament. The Appendix (available as a supplement to the online version of this article at https://ajph.org) provides more references for interested readers. We argue that US advocates for legal and accessible abortion should elevate the country’s own strong tradition of reproductive justice advocacy coming from communities of color and expand our vision to include successful outcomes from Latin American countries such as Mexico, Argentina, Colombia, and Uruguay. Specifically, we urge activists to center access in any future legalization efforts, to push for legal changes at multiple levels (local, state, federal) and arenas (legislative, judicial, and administrative), and to uplift grassroots organizers who are working on the ground to fund and support those seeking abortions.

1965–1992: UNITED STATES LEADS, THEN RECEDES

In 1965, Cuba became the first country in the Americas to decriminalize aspects of its abortion laws.³ Canada followed suit in 1968.⁴ Meanwhile, between 1966 and 1972, many US states also reformed abortion laws. In 1970, Hawaii, Washington, Alaska, and New York became the first four states to legalize abortion without prior approval from a hospital committee. This trend culminated in 1973, when Roe made the United States the first country in the Americas to declare abortion a constitutional right. But the Court’s reasoning in Roe, based on an imputed right to privacy rather than gender equality rooted in the 14th Amendment’s equal protection clause, provided what some scholars increasingly viewed as a shaky constitutional basis for guaranteeing abortion access.⁵

The Hyde Amendment became the first major curb on access by barring Medicaid funds for abortion care except in cases of child endangerment, rape, or incest. The net effect was immediate and stark. In 1978, the first full year in which the law was in effect, the number of Medicaid-funded abortions dropped by one third.⁶ Moreover, after the Amendment’s passage, antiabortion extremists initiated a longstanding if erratic pattern of violence toward abortion clinics and providers.⁷ And from the 1980 presidential election forward, the antiabortion movement gained growing influence in US politics.⁸ Abortion opponents in Congress passed laws preventing coverage by federal employees’ health insurance, the Indian Health Service, military health plans, and for federal prison inmates and publicly insured residents of the District of Columbia.⁹ State legislatures created many restrictions, from bans on insurance coverage to laws requiring spousal or parental consent to mandatory waiting periods. The Supreme Court’s 1992 decision in Planned Parenthood of Southeastern Pennsylvania v Casey upheld these state restrictions as constitutional under Roe.¹⁰

1980S AND 1990S: ACCESS AND RESTRICTIONS DURING THE COLD WAR

In 1979, Cuba became the region’s second country to legalize abortion without restrictions when it reformed its criminal code. This full liberalization broadened a 1965 decision to permit abortions up to 10 weeks’ gestation by redefining a threat to a woman’s “life” as a threat to her general health. Crucially, the national health care system provided the procedure for free. Thus, although Cuba’s legal shift occurred six years after Roe, the country began guaranteeing access to early abortions just as abortion access was eroding in the United States. Later abortions remain legal, just not on request.⁴ In 1988, Canada’s Supreme Court declared that legal restrictions on abortion violated a personal right to security. Depending on the province, abortions are available on request from 12 to 24 weeks’ gestation although funding and access further depend on provincial laws.⁵

But in most of the region, abortion rights remained stagnant, partly attributable to Cold War politics. In the 1980s and 1990s, Southern Cone countries, including Chile, Argentina, and Brazil, were emerging from decades-long violent military dictatorships, often directly funded and supported by the United States, in which governments perpetrated human rights violations including the mass murder of citizens. Under these dictatorships, women-led movements relied on reproductive justice principles, even if they did not use that phrase, to fight for the bodily autonomy of their families and children, many of whom had been “disappeared.” During redemocratization, feminist activists built on these previous human rights‒based claims for bodily autonomy to push for the decriminalization of abortion.¹¹ They set the stage for 21st century, cross-class movements that have centered abortion within larger calls for health equity, social and economic justice, and bodily autonomy in the face of state violence.¹²

In Central America, the United States also supported violently repressive right-wing regimes that destabilized countries and perpetrated massive human rights abuses. In the 1990s, as many countries emerged from their civil wars, they subsequently enacted highly restrictive abortion laws. In El Salvador, a strong antiabortion movement succeeded in criminalizing the procedure under any circumstance in 1997 and enshrining life as beginning at conception in 1999. Since then, the judicial system has taken an activist stance, investigating and prosecuting miscarriages and stillbirths as possible crimes.¹³ And in 2006, Nicaraguan president Daniel Ortega, once a leftist revolutionary, allied with a conservative Catholic establishment, which exerts strong influence across the region, to criminalize abortion under all circumstances.¹⁴ In the 1990s then, the United States’ broad provision for pre-viability abortions—even with the post-Casey retrenchment—contrasted sharply with the situation in these Central American countries.

In the 1990s, US activists also radically reframed abortion activism, even if mainstream feminists and the media overlooked their actions. The predominantly White, middle-class, prochoice movement persisted with its narrow, individual rights‒based case for legal abortion in the face of restrictions. In response, a group of US Black feminists convened in 1994 to articulate a broader “reproductive justice” framework that situated abortion among the social, economic, and political inequities that prevented many people from accessing all forms of reproductive health care specifically and health care and economic opportunities in general.¹⁵ The framework focuses attention on addressing the structural barriers to health and well-being: it asserts that “all fertile persons and persons who reproduce and become parents require a safe and dignified context for these most fundamental human experiences.”^15(p9) In essence, all people have “the right not to have a child; the right to have a child; and the right to parent children in safe and healthy environments [italics in original source].”^15(p9)

THE 21ST CENTURY SCRIPT FLIP

In the 21st century, the momentum for widening abortion rights has shifted south from the United States. Mexico (2007, 2023), Uruguay (2012), Argentina (2020), and Colombia (2022) have all taken steps to legalize abortion. Coalitions of feminist networks and health professionals have won legislative and judicial successes using strategic combinations of human rights- and public health‒based approaches that adhere to reproductive justice principles of social, political, and economic equity. Although different countries and movements have made specific claims and used varied tactics, generally feminists in Latin America have argued that restrictions on abortion are a form of gender-based violence and, thus, a violation of pregnant people’s human rights, as well as their bodily autonomy—a position that stemmed from opposition to state authoritarianism in the late 20th century.¹¹ Illegal or inaccessible abortion restricts women, girls, and pregnant people from full participation in social, political, and economic life.

In Mexico, where abortion is regulated at the state level, the first change came in 2007 when Mexico City legalized abortion up to 12 weeks’ gestation and legally required that the Ministry of Health provide free services. But in subsequent years, surrounding Mexican states further criminalized abortion.¹⁶ A broad coalition, including the feminist human rights advocacy organization Grupo de Información en Reproducción Elegida (GIRE), persistently organized around the issue, using federal constitutional actions (amparos) to press for full legalization nationwide.¹⁷ In 2019, the state of Oaxaca became the first to legalize abortion after Mexico City. In 2023, the Mexican Supreme Court decided that the criminalization of abortion was unconstitutional as it violated pregnant people’s human rights, removing it from the federal criminal code. The court further declared that defining legal personhood as beginning from conception was unconstitutional.¹⁸ As of June 2024, 12 out of 32 Mexican states had legalized abortion.¹⁷ Nonetheless, criminal penalties are still in effect in at least 20 states. Although people pursuing abortions no longer face criminal charges, local criminal laws restrict abortion access.¹⁸

In 2012, Uruguay legalized the procedure up to 12 weeks’ gestation. This result represented a consensus middle ground between feminist rights-based arguments and public health harm-reduction approaches that emphasized the potential to alleviate morbidity and mortality from unsafe illegal abortions.^19,20

Other Latin American countries also responded to a groundswell of feminist activism, marked by the transnational Marea Verde or Green Tide movement, in which millions of women, wearing pañuelos verdes (green scarves), have taken to the streets to protest against restrictive abortion laws since the mid-2010s.^11,12,19 When Argentina’s legislature legalized abortion up to 14 weeks’ gestation in 2020, it resulted from a decades-long fight in which a broad coalition of activists incorporated demands for legal abortion within social justice petitions and focused on the health inequities of abortion restrictions on the health and lives of poor communities.^11,19 The 2020 Argentine law further stipulates that public hospitals must provide the service free of charge.¹²

Colombian reproductive justice advocates engaged in strategic litigation, arguing that a statute criminalizing abortion with narrow exceptions constituted gender-based discrimination. In 2022, the Colombian Supreme Court legalized abortion without restrictions up to 24 weeks’ gestation.²¹ Other countries have made smaller steps toward decriminalization in certain circumstances. Judicial rulings in Brazil (2012) and Ecuador (2021) created more exceptions for legal abortions.¹⁴ A senate vote in Chile (2017) passed three exemptions to the previous full ban on abortion.¹⁹

Alongside these successful efforts to decriminalize or legalize abortion, separate but connected grassroots “accompaniment networks” have provided information, support, and sometimes access to safe self-managed abortions in restrictive contexts. These activists have operationalized cross-regional networks to provide information on self-managing abortions and, to a lesser extent, to send medication abortion through the mail.²² This approach draws on Latin America’s pioneering role in self-managed abortion care. In the 1980s, long before the ulcer drug misoprostol was approved for abortion, women in Brazil began accessing this drug off-label in pharmacies to terminate their pregnancies.²³

Importantly, the arguments that abortion advocates have successfully mobilized have hinged on bodily autonomy from within a human rights framework; on gender rights to ensure equal social, political, and economic participation; and on public health interests in mitigating adverse health outcomes. These arguments, while distinct and context-specific, overlap with the US-based reproductive justice framework, especially in their attention to the broader structural context that shapes access to reproductive health care.

CAUTIONARY TALES REMAIN

These advances in abortion rights have not escaped backlash. In a Catholic region—with a growing vocal and widespread evangelical movement—many antiabortion activists, politicians, and publics also rely on rights-based claims, those of the fetus.²⁴ Yet, broad-based pluralistic abortion rights coalitions (including Católicas por el derecho a decidir—a Catholic reproductive justice organization) have sought to counter this ongoing backlash by seeking to remove the discussion from a binary that pits the life of the fetus against that of the pregnant person and centering it in a framework that situates gender rights as human rights.²⁵

We can also look to some Latin American countries as cautionary tales. The complete bans on abortion in El Salvador, Nicaragua, and Honduras (and the Dominican Republic, Jamaica, and Suriname) have been detrimental to reproductive health.¹⁴ Outside of sub-Saharan Africa, Latin America and the Caribbean is one of the only regions in the world where multiple countries outlaw abortion under all circumstances.¹⁴ In these countries, fetal rights take precedence, much like in some states within the United States—to the detriment of pregnant people.

Our hope is that the United States follows Colombia, the liberalizing Mexican states, and Argentina, and not El Salvador or Nicaragua. Currently, the country is doing both.¹⁴ While many in the US feminist movement have historically relegated poor and minoritized women to the margins of the debate and have failed to squarely embrace reproductive justice‒oriented approaches that center access and equity, success of the Marea Verde and other movements suggests that we have much to learn from more inclusive approaches.

Specifically, we first urge political leaders and established prochoice groups to center access in any future legalization efforts. This does not mean a return to Roe but, rather, thinking expansively about how the right to an abortion must go far beyond “choice.” Second, we must be relentless and pragmatic when pushing for legal change, operating at multiple levels (local, state, federal) as organizers did in Mexico; in multiple arenas (legislative, judicial, administrative) as lessons from Colombia, Uruguay, and Argentina show; and across strong coalitions with different goals but ultimately focused on legalization and access. Recent ballot initiatives in favor of abortion rights provide one example for action.³ Finally, we must uplift grassroots organizers who are working on the ground to fund and support those seeking abortions right now, especially for those living in restrictive contexts. For years, abortion funds have provided crucial support and funds for underresourced people to access abortion. Their work has become even more urgent, and central, in a post-Dobbs landscape.

We can learn from our counterparts in the Americas how broad-based and longstanding feminist and public health alliances can reframe the abortion issue, moving it from discussions of morality and religion and, thus, fetal life, to bodily autonomy, gender rights, and public health outcomes. Success comes through decades of long-term commitment to growing a grassroots movement across different constituencies and persistence in the face of seemingly insurmountable cultural barriers and obstacles. Similar levels of dedication, shifts in mindsets, and openness to embracing a diverse coalition will be required in the United States to turn the tide.