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Podcast Episode 19: Abortion in the Southern Cone with Dr Elizabeth Borland



CJ: Hello and welcome to the Feminist Law Podcast. I’m your co-host Courtney Jones. 


CT: And I’m your co-host Clara Topiol. We’re both co-founders of the Feminist Law Project and final year law students who are very passionate about feminism and the law. Today on the podcast, we have Dr Elizabeth Borland, Professor of Sociology at the University of New Jersey. Could you please introduce yourself?


EB: Hi there, thank you for inviting me to speak with you. I’m a feminist sociologist and I’ve studied reproductive rights movements in Argentina for nearly three decades with some comparative work on Chile and Uruguay for some years. I’m really interested in the connection between abortion rates and legal activism at a time when policy changes are making abortions more accessible in South America despite becoming less available in the United States and unfortunately, other places too. 


CJ: Yes, it seems like one of your main interests lies in gender and social movements. So, I guess, why is that or I guess a better way of putting that is what sparked your interest?


EB: That’s a great question. I actually studied abroad as a student in Argentina way back for my undergraduate and I was really inspired by the work of activists there. Argentina has a long tradition of important aspects of women’s activism and a group of human rights activists who were really important in challenging the dictatorship there. Of course, I knew about that tradition, and I was inspired by it. I was also really inspired by feminists at the time who were working around abortion rights, at a time where people weren’t really talking about it very much in Argentina. So, it’s a great example of how I’ve been captivated by the activists around the world really to address really big social problems that people are facing in their communities. I think both for feminists and other activists that bring gender into their work. I think they’ve been at the forefront of a lot of issues even in contemporary society and I’m interested in how gender identity has had an impact on how people engage in collective action.


CT: That sounds fascinating thank you and such a wide and broad field of research. In your article called ‘Feminist Lawyers, Litigation and the Fight for Abortion Rights in the Southern Cone’, and from what you just told us about your research and your studies, you decided to focus on three countries primarily, namely: Argentina, Chile, and Uruguay. Why is that and why are these significant in terms of socio-political context?


EB: It’s a really interesting set of cases. In all three places, they’ve had abortions for a long time, it was prohibited, it was illegal but was widely practiced. Sometimes unfortunately, they lead to imprisonment. In the last ten years or so, there have been really major changes. Changes in all three places actually in terms of the law. Social movements have been part of that change and important in contributing to the recent reforms that extend access to safe and legal abortions in all three countries. The changes have been different, and the implementation has been different. It’s a good comparative case. It’s also a set of cases that many scholars in general have compared because they have somewhat similar histories in terms of experiencing dictatorship, having some economic similarities, religious and cultural similarities as well as differences too but it’s a commonly comparative set of cases. 


CJ: So, I guess going on from that, what’s the general situation regarding abortion rights in the Southern Cone today?


EB: So, it does vary by country. Uruguay was sort of first up: they removed the penalty for first trimester abortions in 2012. They implemented a policy that was seen at the time as being ground-breaking: it has five-day week period and to have an abortion, a pregnant person must be approved by a tribunal, as the feminists call it; a medical provider, a psychologist, and a social worker. If they have been resident in Uruguay for a period of time, they’re able to have a legal abortion. That law really resulted from a campaign that amounted to an amazing amount of public and presidential support. Activists, whilst they appreciate the provisions that are available for first-trimester abortions, do argue that it puts too much power in the hands of medical institutions. There are legal cases that challenges women’s access. Chile followed in 2016 with a much more limited provision that makes abortion legal in very limited cases: rape, non-viable fetuses and when there’s a threat to the woman’s life. In that case, it’s been much more restricted. There is legal abortion in Chile, but it is really based on these three causes. So, there’s been a lot of demand from activists to expand the access. Also, because the law doesn’t provide free public provision. In Argentina, it’s the case that’s most recent in some ways most exciting for feminists around the world, especially in Latin America, because there’s an enormous wave of activism that rallied support for the legislative and executive branches to pass a provision of a very progressive abortion rights law in late 2020. Even amidst the pandemic, there’s this added momentum to this big protest.  That law is a more progressive law. It allows for anyone with gestational capacity to have guaranteed access of public abortion. That’s a case where even incorporating gender identity and people who don’t identify as women are included. I think that’s the landscape and the case of Argentina is very exciting because it has had a lot of attention. 


CJ: You mentioned that you look at the Cone because there is a lot of similarities between the countries in terms of their culture and religion and that kind of thing. I was wondering if you could explain why, you think that within those three countries, given the similarities, that abortion is much more restricted in some as opposed to the others and why that discrepancy exists?


EB: I think that the religious landscape is a bit different in the three countries. Uruguay has a much more secular nature and Chile has been much more conservative in nature, although even as the Catholic Church has eroded a little bit in Chile, we’ve had a rise of Evangelical Protestantism there which is an important factor to consider. Some cultural similarities but also those differences. The Catholic Church is still dominant in all three cases but less so with a more secular orientation of the government in Uruguay than in the other two cases so that’s an important factor. I also think that Chile has an individual orientation for healthcare, it’s much more private there. When you get provisions you have to do in public and public provisions of access like in Argentina, it’s much harder to envision how that may happen in Chile or the healthcare system is much more individual. Those are just two examples. There are variations. I think this answers your question. 


CT: Yes, thank you for clarifying those points. In your article, you write extensively about the pivotal role of cause lawyers as important resources to expand democracy and lead the movement. So could you please expand on this and about how important their role is and why lawyers?


EB: Yes, sure. Cause lawyering is a very interesting phenomenon. It involves a set of activities because you have lawyers who are engaging in mobilizing the law to promote or to resist social change. Often times, people think right away that it’s strategic litigation which really is a strategic effort to use litigation to change legal standards, but I think we want to think as cause lawyering as more than just that. Often, it involves attempts to foster some collective action, to make legal change sustainable, to really work around implementation. Often, the role also involves a significant amount of publicity. So, when movements in general have nimble cause lawyers who are able to act as the lawyers and activists, they can marry that role and engage in more defensive strategies as well as more offensive strategies using the law. I think that when it comes to abortion rights in Latin America, much of the focus has been on advocating for new legislation and working on movements to work on that legislation, to make that legislation, the proposals for legislation as possible, make them possible but also to try and make sure that the implementations are feasible. Change though has also come through court cases. Court cases are often testing ground for interpretation of existing laws and it’s another way that lawyer activists can demand access, especially around people who are vulnerable. Finally, I think sometimes cause lawyering is much quieter. It can also be cases that lawyers take to support individual plaintiffs or individual victims of various problems around reproductive justice. I think we often think of the cause lawyering for the camera, on the court steps, interviews or something but I think some cause lawyering is much quieter and more behind the scenes as people try to trust the specific views that people have when their rights have been violated. 


CJ: Yes, it sounds like cause lawyering is a definitely very interesting phenomenon, very new in terms of advancing certain progressive social movements. In your article, you also talk about the fact that feminist legal training and networks are instrumental for cause lawyers for their rights of access to abortion law in the Southern Cone. Why is that and how significant do you think the impact of cause lawyers could be to advance women’s rights and access to abortion?


EB: That’s something I think is really interesting and one of the reasons I was really excited to talk to you all, interested in feminist legal education. It’s an area where I think a comparative lens which I have with these three cases can help us understand especially the importance of legal training and networks also between lawyers. In general, Chile and Uruguay have had less developed networks compared with Argentina. In Argentina, lawyers talk to me about how not only the groundwork that they’re doing now was laid two decades ago in connections that they very instrumentally and strategically built between feminist lawyers across the country. They created a federal network, I think it started in 2002 and it coordinated work with government agencies, with bureaucracies, with health ministries, public health systems but also the judicial branch so working with national and provincial courts and judges, training judicial branch personnel against existing health protocols, even working as a journalist to challenge and help them think a little bit about how they’re writing about these cases and how to deal with abortion. That really concerted effort and was strategic work and network-building has paid off. As well as the network and judicial personnel who are informed about abortion rights. Especially in a place like Argentina where you have a sort of federal court system and provinces are far from the capital. Having this network built across the country is really essential. You mentioned legal training. That’s another important aspect of this. At the same time that all this work to build networks was going on, there was also an interesting push to build an expansion of women and gender studies into academics. This was happening in Buenos Aires but also other places across Argentina. Feminists were interested in drawing attention to gender including reproductive gender issues. At the time, there was more about reproductive rights in the legal training. So, you have more law students exposed to just issues in general of gender and the law and it created a fertile environment for groups of activist lawyers. I think this case of Argentina is a really good model to think about the importance of the networking effort that goes on, the activists building those connections and lawyer activists especially building those connections with the institutional support to weave together networks of support, connections amongst cause lawyers or future cause lawyers so they can pull resources, create a contact in case of various issues coming up and they can learn from one another. I think ultimately, to help create the kinds of institutions that will support real reproductive justice. I think that’s a strategy and an effort. It takes some time to build those sorts of networks but I think it’s the kind of thing that can pay off everywhere, around the world, for people who are getting legal training, who are feminists in orientation to really do the work to build up the capacity to take on the various kinds of cases that can come up when reproductive justice and other gender issues come up. 


CT: That’s absolutely fascinating and I think it’s a really interesting point to explore. If we now shift our vision towards the more legal side of things and more legislation. In your opinion, do you think that legislation in the Southern Cone countries is a suitable way of progressing democracy and advancing women’s rights, especially regarding abortion? And do you think there are any instances where this has worked or rather not worked?


EB: Of course, that depends on the content of the legislation, right? I think we can see that here with the case of Chile. In Chile, the law on the one hand, when it was instituted in 2017, it was a major advance because they were working from a complete ban that came from the Pinochet dictatorship that had been in place for a really long time, a complete ban on abortion. So, of course, in 2017, after years of feminist campaigning, you have this new law, the ban is lifted, abortions become allowed under some conditions but they’re extremely strict: if a woman is at risk, if she’s been raped or if the fetus is not viable. It’s a very miniscule proportion and the amount of time that it might take to get things approved is also a problem because of course, pregnancy runs on time on a pretty strict time clock and you need to get provisions on access to abortion within a period of time. Whilst the statistics are a little iffy in Chile on some of these issues, activists estimate that it is less than 5% of all abortions that are happening in Chile are using these three clauses. So, the majority of women are still having abortions that are not legal, that are secret and sometimes high-risk. There’s a case where the content of the legislation is extremely important in terms of actually being able to ask for abortion. In Argentina, on the other hand, the provisions have been a lot more effective. We have a much more progressive law, it goes to 14 weeks but also has provisions for later-term abortions for the public in terms of accessing free abortions, it’s really exciting because it’s the most progressive law. We can see that already there are more people accessing abortion through the provision which is declining mortality rates as more pregnant people get the care they deserve. At the same time, there’s still obstacles; obstacles to ensuring accessible, quality care for everyone, especially given the disparate access by regions. The north of Argentina, there can be miles or kilometers, many many where people have access to abortion because there’s so many doctors and medical personal who dedicate themselves to the conscientious factors and refuse to even prescribe medication for abortion or get involved in it in any way. Even when there is legislation, it’s also about the implementation and about people being able to get access. In fact, there’s been recent cases that have targeted doctors who do provide access. In 2021, there was a case of a doctor named Miranda Ruiz, she was arrested for prescribing misoprostol, one of the main medication for medication abortion to a pregnant adult in the province of Salta who auto-administered according to the provisions of the law. An overzealous conservative prosecutor went after her and arrested her. She spent a few hours in jail, even having completely followed the law and everything. The case was ultimately overturned but I think it’s a good illustration of how the law alone can guarantee access. It’s about implementation, actually having access, especially throughout the country and also the continued support of lawyers being available when people’s rights are being violated.


CJ: Yes, and it’s really interesting that you mention this doctor being arrested for providing abortion access. I guess, considering that recently in the United States, Roe v Wade has been overturned and there’s been the K1/20 decision in Poland which both ban or at least allow a ban at least partially of legal abortions, where do you see abortion rights headed in the Southern Cone?


EB: Yes, I think that it’s really striking to see these comparisons in Argentina most recently but also in Mexico and Colombia and countries that are similar, really massive spells of activism for these changes in the Southern Cone and other places in South America and Central America too and to contrast that with what’s going on in the US and more recently in Poland. I think conscientious objection will continue to be important. So, thinking about how cause lawyering can stand in the way of real access to reproductive rights in all these places. One thing I think is interesting about this is that in the Southern Cone, there has been an emphasis on what activists call the social decriminalization of abortion; this idea that you can have legalization, you can have policies but as long as people still associate, are stigmatizing abortion and criminalising it at least in their minds, people won’t be able to fully exercise reproductive justice. I think that our activist feminist colleagues in Argentina shine a light on the importance of this continued street-level activism with a great deal of persistence and perseverance and how important that is to really build a social decriminalization of abortion. I think this is something I see expanding, certainly in Latin America and something we need to learn from in places like the US and Poland as well, other places around the world; it’s not just about legal provision but also about social decriminalization. 


CJ: Yes, and you mentioned earlier the importance of cause lawyering and feminist legal training, it’s really interesting to highlight how cause lawyering can really go both ways; in one sense, it enhances access but in the other, it can restrict it so that’s definitely very interesting. Yes, and sometimes there’s a dynamic of ticking a page from a book. Some of the things that cases around the conscientious objective case have used frameworks around human rights, that have been used for a long time by feminists and more progressive activists. It’s interesting to see that. 

CT: Yes, 100%. And to borrow your words, again it really does sound like there’s persistence and perseverance in terms of the work that’s being done for abortion rights int eh Southern Cone, especially in Argentina which is really reassuring to see. So, now, to wrap up, if our listeners would like to learn more about your research or women’s rights and abortion rights in the Southern Cone more specifically, where can they do so, please?


EB: Thank you. I’m happy to share my work. They can look me up on Google Scholar. You also mentioned the chapter that I was referring to in the beginning of the podcast. That’s a great book that can be a good reference point for thinking about abortion rights in the Southern Cone in general. I’ve been toying with a whole bunch of other scholars from different disciplines that are looking at abortion in democracy and contentious body politics in Argentina, Chile and Uruguay so that could be a good place for people to look at this topic from different perspectives. 


CJ: Thank you so much for joining us today.


EB: Thank you! 


CJ: In today’s feminist news roundup, the BBC has revealed that hundreds of sex offenders slipped off police radars over a three-year period after the offenders had changed their names.


CT: Also in today’s news roundup, double rapist Isla Bryson has been sentenced to eight years in prison. The judge also declared that Bryson would be monitored for three years after release due to posing a serious risk for reoffending.


CJ: Finally, a year after the historic overturning of the Roe v Wade judgment in the US, individual states are being left to decide reproductive rights, with some states rolling back protections, and others striving to enshrine women’s bodily autonomy in the law.


CJ: If you have any suggestions for this podcast, let us know directly via email at contact@feministlaw.org.


CT: Please also visit our website at feministlaw.org and follow us on Instagram and LinkedIn to keep up to date with our latest articles, podcasts, newsletters and exciting news. 


CJ: The music from this podcast was sourced from Pixabay.com


CT: Thanks for listening! 



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