Ecuador’s constitutional court decriminalizes abortion in cases of rape
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On April 28th 2021, Ecuador’s Constitutional Court voted to decriminalize abortion in cases of rape, marking a milestone for women’s reproductive rights in Latin America. However, the deeply divisive nature of the debate means that the complete decriminalization of abortion in the near future remains unlikely.
The Green Wave in Latin America
Pro-choice movements in Latin America have been campaigning in favor of legal abortion rights for decades. However, in recent years there have been increased calls for legislative reform. The Green Wave movement, so called because of the green handkerchiefs the protesters carry, has been a prominent voice in favour of abortion rights. The green wave led to the legalisation of abortion in Argentina up until the 14th week of pregnancy. This has reignited calls for free and safe abortion access across Latin America. In Chile, for example, Congress has opened a debate on the decrimimalization of abortion.
Nevertheless, Latin America remains profoundly divided on the issue of reproductive rights as a result of the powerful role that the Catholic Church has historically played in its society and politics. The influence of Catholicism remains so pervasive that some parts of Latin America are in fact seeing a decline in abortion rights in what is already one of the most difficulties regions of the world to obtain an abortion. For instance, Honduras’ Congress recently passed a bill that strengthens the abortion ban by making the law nearly impossible to overturn. Specifically, this new bill enshrines the prohibition of abortion in the constitution and raises the bar for legalising abortion by requiring three quarters of votes in congress.
Women’s rights in Ecuador
Ecuador does not have a strong track record of protecting women’s rights, including abortion rights. The nation’s recent economic growth has not correlated with a move towards gender equality. Women are frequently victims of gender-based violence – 1 in 4 have been victims of sexual assault and 6 out of 10 women have experienced violence against them. Worse still, gender-based violence is now commonly reported in schools.
Unwanted pregnancies, as a result of rape, is a prevalent problem in Ecuador. Data shows that among girls under the age of 14, 80% of pregnancies are the result of rape and estimates suggest that 2,500 girls under 14 years give birth every year in Ecuador as a result of impregnation during rape. Moreover, 15.6% of maternal deaths in Ecuador are estimated to be caused by unsafe abortions.
The Covid-19 pandemic has exacerbated the problem as the lockdown restricted women’s access to health centres for obtaining contraception or attending sexual health consultations.
The Court’s decision
According to Ecuador’s Penal Code, abortion is a crime. Article 149 of the code can give between six to two years of prison for a woman who had an abortion. From 2014 to 2018, the code resulted in the prosecution of approximately 300 women. The only exceptions to Article 149 and 150 are when the life or health of the mother is at risk or when the pregnancy was a result of sexual assault towards a mentally ill woman.
This stringency of the law has been debated several times in Ecuadorian politics. Most recently, in 2019, the National Assembly discussed a proposal to decriminalize abortion in cases of rape, incest, and fetus malformation. However, this proposal was rejected when it failed to secure the majority of 70 votes needed.
More recently though, on April 28th, 2021, in response to a petition made by activist groups, 7 out of 9 judges that occupy the Constitutional Court, voted in favor of decriminalization of the act of abortion. This means that the Court declared that Articles 149 and 150 of the penal code unlawful. With this ruling, the judiciary can demand the National Assembly change the articles that condemn abortion in cases of rape as a punishable crime.
The court’s decision, a pathway towards complete decriminalization?
As mentioned previously, Argentina’s decriminalization of abortion set a new standard across Latin America and marked a divergence from the Conservative abortion policy across the region. In Ecuador, the Constitutional Court’s resolution suggests that safe and legal abortion might become more commonplace across Latin America.
However, there remain cultural obstacles to the full roll-out of abortion rights in the region – in particular, the role of the church. In Ecuador, 80% of people identify as Catholic. The conservative views of the Catholic Church and the President are in line with with a large portion of the country’s population who identify as ‘Pro-Life’.
While Ecuador’s Constitutional Court was deliberating the decision, the Episcopal Conference of Ecuador sent a letter to the judges advising against decriminalising abortion in cases of rape. The President of the Conference argued in the letter that ‘the crime of rape is not solved with the crime of abortion’. He also stated that such resolution falls outside the Court’s core competencies. Instead, he argued that the decision should be made by the National Assembly, which has already rejected the proposal on previous occasions.
Furthermore, President-elect Guillermo Lasso, who won Ecuador’s general election in April 2021, firmly opposes decriminalization of abortion. As a member of the Catholic organization Opus Dei, since his political debut in 2010, Guillermo Lasso has spoken out against legalisation of abortion.
The fact that many powerful actors oppose the decriminalization of abortion makes it difficult to argue that the court’s decision will definitely lead towards free and safe abortion for women. Nevertheless, after the Constitutional Court’s ruling, Guillermo Lasso released a statement vowing to respect the Court’s decision. Moreover, he has chosen a diverse Cabinet, including a large number of women, and has promised to fight gender violence and eradicate femicides. The growing women’s rights movement and Lasso’s campaign promises suggest that whilst slow, progress towards safe and legally accessible abortion is in motion.
Whether the feminist movement continues to gain traction, and whether Lasso delivers on his election promises to women, will determine the future of abortion legislation in Ecuador.
