Demonstrators in favour of legalizing abortion protest outside the U.S. Embassy in Buenos Aires

How the end of Roe could affect abortion access in Latin America

Rebecca Reingold was at a meeting of reproductive rights lawyers in Lima, Peru, when the U.S. Supreme Court ruled to overturn Roe v. Wade, ending nearly 50 years of constitutional protection for abortion in the United States.

The lawyers, many of whom were from Latin America, instantly felt “a mix of sorrow and solidarity” for the people in the U.S. who would be affected by the new restrictions and bans on abortion, said Reingold, an associate director with the Health and Human Rights Initiative at Georgetown University’s O’Neill Institute. There was also concern for what the decision in Dobbs v. Jackson Women’s Health Organization would be mean for abortion access and law in their own countries.

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Nations in Latin America have historically had some of the most stringent abortion laws in the world. However, some countries have taken steps to increase access, particularly in the past three years. In 2020, Argentina’s legislature legalized abortion up to 14 weeks of pregnancy, a stark departure from its previous criminalization of abortions except in cases of rape or to save the life of the mother. Before Argentina made the change, the only other Latin American nations to legalize abortion were Uruguay and Cuba. Mexico also began allowing for limited access to abortions within Mexico City in 2007.

Abortion rights lawyers also won major legal battles when courts in Mexico and Colombia ruled in 2021 and 2022 respectively that all-out abortion bans in those countries were unconstitutional. Currently, Colombia allows for abortion up to 24 weeks into a pregnancy and some jurisdictions in Mexico allow for the procedure in the first 12 weeks.

Lawyers gathered in the meeting in Peru had “concerns about the decision’s possible ripple effects throughout the region, given its potential to reduce judges’ willingness to advance abortion rights or to inspire other high courts to issue similar decisions rolling back abortion protections,” Reingold said of concern in Latin American countries.

While the U.S. Supreme Court has no jurisdiction over the law outside the United States, its decisions are sometimes cited by foreign courts, particularly in cases on “high-profile, contentious issues,” Reingold said, adding “high courts in various countries in the region have cited precedents from other countries, including Roe v Wade, when decriminalizing abortion under certain circumstances or through a certain point in pregnancy.”

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A Colombia Constitutional Court ruling that loosened abortion restrictions in 2006 cited Roe, Reingold said, as it did when it decided to decriminalize abortion through the first 24 weeks of pregnancy earlier this year. In Brazil, where abortion is still heavily restricted, the Supreme Court has cited Roe twice. One of those cases allowed for abortions in pregnancies involving nonviable anencephalic fetuses using Roe’s standards for viability. A case on abortion currently before the Inter-American Court also references Roe.

“The reversal of Roe means that high courts have one less comparative law decision at their disposal to bolster arguments in favor of broad protections for abortion rights in their decisions,” Reingold said.

The Supreme Court decision “may diminish Latin American judges’ and legislators’ willingness to take bold action on abortion in their respective countries, stalling or otherwise undermining efforts to achieve broader decriminalization,” she said.

It could also affect countries whose courts have already legalized abortion, including “efforts to implement recent decisions by Colombian and Mexican high courts to broaden protections for abortion rights.” The ruling may reduce “the political will needed to ensure that these new protections translate into increased access in reality,” Reingold said, or “may inspire similar judicial rollbacks of gains made in the area of abortion decriminalization in other countries.”

Some countries whose leaders oppose abortion and anti-abortion activists around the world have already celebrated the Roe ruling as a victory. Oriana López Uribe, the executive director of Balance/Fondo MARIA in Mexico, said it would likely give anti-abortion activists fuel to “feel stronger, with a little more power after having overturned Roe v. Wade.”

As Dobbs was just being considered, Brazilian President Jair Bolsonaro’s government had filed an amicus brief with the Supreme Court urging them to overturn Roe. On the day the judgement was issued, it released a statement saying “Brazil defends life from its conception and strengthens family ties.”

Brazil is one of several countries, including Egypt, Hungary and Indonesia, to have signed the ‘Geneva Consensus Declaration,’ which “reaffirm that there is no international right to abortion, nor any international obligation on the part of states to finance or facilitate abortion.”

The Supreme Court’s decision to leave abortion rights to the states could also be “particularly persuasive” in countries with federal systems similar to the United States such as Argentina, Brazil and Mexico, Uribe said.

Concerns about international human rights

Beyond the immediate issue of abortion law, the overturning of Roe could threateninternational human rights, experts have warned.

In a brief filed with the Supreme Court after it said it would take up Dobbs, the Global Justice Center, Amnesty International USA, and Human Rights Watch argued that restrictive abortion bans “are inconsistent with international human rights protections.”

“A significant majority of women of reproductive age – almost 60 percent – now live in countries where abortion is generally available,” the brief stated, adding “these state abortion bans place the U.S. in direct violation of its human rights obligations. The rights implicated in these cases – to life, nondiscrimination, freedom from torture, and privacy – come from binding treaties the U.S. has ratified.”

International Bar Association’s Human Rights Institute co-chair Mark Stephens said that under international treaties, including around gender equity, the United States has an obligation to protect the right of women to access abortion.

“The Supreme Court has sold the pass to ignore basic minimum standards of human rights protections which are assured to women, and essentially what they’ve done is they’ve excavated the basement underneath the minimum floor of what is actually appropriate,” Stephens said. “They’ve actually given a map and a diagram for judges around the world to do that if they are hostile to women’s rights.”

U.N. Special Rapporteur for Health Dr. Tlaleng Mofokeng said that for women working in reproductive health, the overturning of Roe – while not unexpected – still left some stunned.

“It’s been quite a stressful moment and I think for many feminists who work on the ground, they’ve been really just exhausted and I think everyone just feels emotionally numb right now,” Mofokeng said. “It’s left people in disbelief”.

For activists in Latin America, the Dobbs decision and expected fallout was also an example of U.S. politics spilling out into their countries.

“In Latin America, we’re kind of used to being hit by [American] politics every time, whenever something changes in the dollar it hits us, or whenever something changes with your rights, anything that happens over there. So this is not new to us,” said Noelia Gomez, an activist with the abortion rights group Socorristas en Red.

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Donor funding for reproductive justice is another concern. Pre-existing foreign aid rules, such as the Helms Amendment, prohibits the use of U.S. aid to fund abortions abroad. Helms was put in place more than 50 years ago as an amendment to the Foreign Assistance Act of 1961. The U.S. also intermittently invokes the “global gag rule”– a policy of refusing to allow U.S. funds to be used internationally with groups that provide abortions. President Joe Biden revoked the rule when he took office. But Mofokeng said with new anti-abortion laws , some donors may be less likely to fund reproductive rights work abroad because of fears of running afoul of laws in the U.S. that make assisting any abortions illegal.

“A lot of the abortions that are happening in Africa, South East Asia, happen often as a result of of donors” funding abortions abroad, Mofokeng said. “The worry is … will those donors now limit provision of abortion?” Mofokeng said.

Gomez said that some funding from U.S. donors already helped lead to legal victories for abortion. But she added that they may see a greater need to offer assistance in the U.S. rather than Latin American countries.

“And if it does, maybe it’s a necessary change, because the emergency now is in the U.S.,” Gomez said, adding that with financial assistance from around the globe, it could be time to “ strengthen our bonds with those other donors.”