Content warning: this article contains references to sexual abuse, assault and rape.

A small step forward for women’s rights in Ecuador came on 28 April when the Constitutional Court decriminalised abortion in cases of rape. The decision came in response to several unconstitutionality lawsuits filed by women’s rights groups. It was welcomed by the National Women’s Coalition of Ecuador as a much-delayed and necessary gain in the struggle for women’s full autonomy over their bodies and lives, and an undeniable milestone for the girls and adolescents who are the main victims of the country’s sexual violence epidemic: one quarter of pregnancies of those aged between 15 and 19 are reported to result from rape.

Women’s rights groups, however, agreed that while necessary and urgent, the measure was far from sufficient, and publicly committed to continue the fight for full decriminalisation and abortion on demand made available by the public health system as a matter of human rights.

The Court’s decision – taken with seven votes in favour and two against – broadened the range of situations for which abortion is allowed. Article 149 of the Criminal Code, which continues to impose prison sentences of between six months and two years both on the person undergoing an abortion and those involved in the voluntary termination of a pregnancy, will no longer apply when pregnancy is deemed the result of rape.

Following the ruling, then-president Lenín Moreno – who only a few months earlier had fully vetoed a Health Code bill that included several articles on sexual and reproductive rights that women’s rights movements had long advocated for – tweeted his support and stated his hopes that it would result in advances in women’s welfare and rights. His soon-to-be-inaugurated successor, hard-line Catholic Guillermo Lasso, issued a public statement assuring that he would respect the ruling in the name of his belief in a secular state and his respect for judicial independence.

But even though this was a relatively small step, a conservative backlash still mobilised, both on the streets and in the highest spheres of power. On the day the Court delivered its ruling, dozens of women wearing green scarves with the slogan ‘To decide is our right’ gathered outside its offices, only to face counter-mobilisations of fundamentalist religious groups claiming to be protecting ‘the rights of the unborn’. In reaction to the ruling, the head of the Ecuadorian Episcopal Conference published a public letter addressed to the president of the Constitutional Court calling abortion a crime and stating that ‘the crime of rape cannot be addressed by committing another crime’.

The legislative battle ahead

The backlash made clear that women’s rights advocates still face an uphill legislative battle. While the Constitutional Court established that nobody who has been raped can be criminalised for getting an abortion, it now falls to the National Assembly to determine the details. The more demanding and restrictive the conditions imposed, the less likely this essential health service will be effectively accessible to those who need it.

Two months after the Constitutional Court ruling, in late June 2021, the Ombudsman’s Office submitted a bill to the Assembly establishing the procedures to ensure access to abortion by those pregnant as a result of sexual assault. A six-month deadline was established for the bill to be debated by a parliamentary committee.

Before submitting the bill, the Ombudsman’s Office put the proposal up for public debate. The process allowed for the participation of hundreds of civil society organisations and activists throughout Ecuador, and additional input was collected through an online form. During the consultation process and in the ongoing parliamentary process, the women’s rights movement is focusing on ensuring that the most vulnerable parts of the population and women in the most remote locations are able to access the right: most women prosecuted for having abortions live in poverty and are Indigenous or Afro-descendant.

Women’s rights groups insist that the legislative process needs to open up to include public hearings and multiple opportunities for civil society voices to make themselves heard, and that the law should only establish the simplest of requirements and have no fixed deadlines; deadlines can be used by opponents of abortion to delay proceedings until it is too late.

A common problem with legislation allowing abortion under certain conditions is often the requirement to prove that conditions have been met; legal battles can lead to crucial delays. In an effort to avoid this, women’s rights activists are demanding that no formal complaint or sworn statement be required from people already traumatised by rape to access a legal abortion, making it instead the doctor’s duty to file the complaint and inform the relevant authorities that a patient has been raped.

Ecuadoran women’s rights advocates also reject any clause allowing for conscientious objection, as experience from other countries shows that medical practitioners in less urban and affluent communities may declare their conscientious objection en masse, leaving women out of options. As a worst case scenario, rights groups are advocating for safeguards to ensure that conscientious objectors are not able to block a legal abortion by imposing an obligation to provide a referral to another medical professional and requiring medical institutions to have at least one non-objecting medical team on site.

Global and regional trends

Will this step lead to a broader challenge of Ecuador’s restrictive abortion legislation? Emerging regional and global trends suggest that it might. According to the Center for Reproductive Rights, enormous gains have been made globally in recent decades, with around 50 countries liberalising their abortion laws, sometimes radically – as was the case in Argentina in late 2020 – but often incrementally, removing one restriction after another.

But Latin America and the Caribbean still have a long way to go. There are only a handful of countries where abortion is available on request. Under 10 per cent of the region’s women – compared to 36 per cent globally – have unrestricted access to this right.

In contrast, while globally 22 per cent of women live in countries that allow abortion only to save the life of the pregnant person, this restriction applies to an overwhelming number, 64.5 per cent, in Latin America and the Caribbean. These numbers are driven up by the two biggest countries in the region, Brazil and Mexico, where the experience for the vast majority of women has been little different from those living in countries where abortion is prohibited altogether – 7.3 per cent of women in Latin America and the Caribbean and 5 per cent worldwide.

The demand for ‘legal, safe and free abortion’, as the Argentine women’s movement put it, has spread rapidly across the region, as seen in successive International Women’s Day mobilisations that have systematically prioritised demands on ending gender-based violence and advancing sexual and reproductive rights. The denial of rights in both these spheres is understood as a form of violence, and violence is viewed as a phenomenon enabled by the same denial of women’s full autonomy that underlies restrictive abortion legislation.

In every country in the region, the women’s movement has been emboldened by the recent transformation achieved in Argentina and is pushing for decriminalisation and universal access through the public health system. In the Dominican Republic, where abortion is not allowed on any grounds, women’s groups continue to push for decriminalisation on three grounds: in cases of rape or incest, for unviable pregnancies and when the pregnant person’s life is in danger. In 2021, protesters camped outside the National Palace to demand change.

In El Salvador, where abortion is also banned altogether, Congress has continued to resist attempts at legal reform, but in March 2021 the women’s movement  succeeded in getting the Inter-American Court of Human Rights to hear the case of a woman sentenced to 30 years in prison for having a miscarriage. The move will subject domestic legislation to international scrutiny and possibly an international challenge.

In Mexico, the Supreme Court responded to decades-long civil society advocacy efforts by issuing two historic decisions that will likely pave the way to full decriminalisation nationwide. In early September 2021, the Supreme Court declared the criminalisation of abortion unconstitutional, voiding several articles of the Criminal Code of the state of Coahuila. The following week, in another case involving the state of Sinaloa, it declared it unconstitutional for states to protect ‘human life since conception’. Mexico is a vast federal country where state-level laws currently range from full legalisation in Mexico City and the states of Hidalgo, Oaxaca and Veracruz, to a variety of significant barriers in other states.

Piecemeal progress notwithstanding, full rights are still denied to most women in Latin America and the Caribbean, and their realisation remains a distant ambition for many. This is why every step forward, including Ecuador’s, must be celebrated, defended, implemented – and built upon as a positive example for others to follow.