Latin American feminists have been tirelessly working to eradicate criminal abortion laws from the regional map. Public prosecutors can give us a hand.
I received Lidia’s* message on a late night. [*Her name has been changed to protect her privacy.]
“Hi, I am the woman from the news. Can we talk?,” it read.
I did not need further explanation. Lidia’s story had been all over Brazilian news and social media websites. Accused of two crimes—inducing her own abortion and “hiding a corpse”—she was facing up to six years in jail and reached out to me as a lawyer who has worked for reproductive rights in Brazil.
The case of Lidia, a woman of color, unemployed and mother of two young children, is not exceptional. On the contrary, throughout Latin America women like Lidia who are accused of having induced their abortions still face harsh criminal penalties.
For decades, feminists across the region have creatively engaged in legal reform strategies to eliminate abortion provisions from penal codes, with some success in places like Uruguay and, most recently, Argentina. But these successes are still far out of reach for many of the region’s countries where the political climate does not tolerate any easing of abortion access. There is another way, less costly and politically demanding, to protect women and other pregnant people from unjust abortion laws.
Public prosecutors, the gatekeepers of the criminal legal system, can simply stop enforcing criminal abortion laws.
While this might sound like it would be a case of prosecutors going rogue, they make decisions every day on which cases to pursue. Early on in law school we learn that criminal laws serve to protect society by dissuading people from engaging in actions that violate or endanger social goods. But this is not true of abortion laws.
Latin America has some of the most restrictive abortion laws in the world, which further entrench abortion stigma and have a disproportionate impact on pregnant people from marginalized communities. And yet, these criminal laws are not a deterrent. Abortion is a common event in the reproductive lives of common people—the annual regional abortion rate is estimated at 40.5 per 1,000 women of reproductive age. A simple comparison to the abortion rate in the USA—13.5 abortions per 1,000 women—attests to the magnitude of the phenomena in Latin America, but most importantly, to the inefficacy of restrictive abortion laws.
If these laws do not prevent people from having abortions, one wonders then what criminal abortion laws do. The answer is that they harm people, in several different ways.
- Criminal abortion laws create an environment of fear, secrecy and mistrust, where people resort to methods that may place their health and lives at risk.
- Criminal abortion laws create a clandestine abortion market where middle and upper-class women can resort to safe, efficient but expensive methods, while the working-class and the poor usually end up seeking riskier options.
- Finally, women and other pregnant people, particularly poor and racialized, are effectively criminalized, having their lives thrown into disarray and often spending time in inhumane prisons.
I have witnessed this firsthand. Having worked for several years with legal advice for people who have abortions and those supporting them, I know the psychological damage produced by fear of criminalization. I am also aware of how criminal law creates unnecessary barriers to the critical supply of essential medicines and health technologies. And, perhaps most important, I have seen health care personnel become informants against of those they should be caring for.
Prosecutors, however, rather than continuing this harmful path, have the power and discretion not to move forward with criminal charges.
As government officials they are bound not only by criminal laws, but also by human rights. Brazil and Latin American countries have ratified several treaties on human rights which together entitle people to heath, privacy, bodily autonomy and non-discrimination—all rights which, in my view, are violated when prosecutors pursue criminal charges against women who seek abortions.
They are required to always measure the criminal laws against the standards provided by human rights. Criminal abortion laws violate people’s rights to equality, autonomy, privacy, health and to live a life free of discrimination. These are sufficient reasons to not prioritize enforcing criminal abortion laws in the face of so many other serious cases that arrive at prosecutors’ desks.
Part of a prosecutors’ job is to decide how they will charge someone, or whether they will press charges at all. These decisions must be consistent with what they are ethically obligated to do, and thus entails measuring outcomes. As officials invested with the power to protect society through the criminal justice system, they must set out priorities by evaluating when criminal prosecution does more harm than good. Such process of evaluation is not a novelty. Take, for example, the case of prosecutors in Brooklyn in New York City who have decided to not charge undocumented migrants for non-violent crimes in order to protect them from deportation. Similarly, a nationwide study in the United States has shown that most prosecutors are unwilling to prosecute physicians who help their patients commit suicide.
Some might argue that public prosecutors have only the legal obligation to uphold the letter of the law. However, this is not true.
In doing their work—which is a public good—prosecutors must attend to so much more than the letter of the criminal law. They must address racial disparity, acknowledging that the criminal justice system is riddled with institutional racism, thus impacting the lives of people already marginalized by race and class. They must calculate the costs of incarceration, both for the individual and society, knowing that jails in Latin America are not spaces for social rehabilitation. And, finally, they should look at the structural reasons why so many people resort to abortions in the first place—lack of resources, sexual and reproductive health services, information, and support. All of these are measures of justice, so distinct from enforcing criminal laws, and yet, still under the scope of a prosecutor’s duty.
Latin American feminists have been tirelessly working to eradicate criminal abortion laws from the regional map. Public prosecutors can give us a hand; ending enforcement of abortion laws and allowing them fall into disuse is also an effective way to promote legal reform.