Ecuador: a small but decisive step in the struggle for sexual and reproductive rights
Content warning: this article contains references to sexual abuse, assault and rape.
In April 2021 the Ecuadoran Constitutional Court decriminalised abortion in cases of rape, following legal complaints brought by women’s rights organisations. While the women’s movement views the ruling as ‘too little, too late’ and still faces a legislative battle to turn the ruling into actionable public policy, the Court’s decision represents a watershed in a country with highly restrictive abortion laws. It could be the first step towards full legalisation. Recognition of the fact that this small victory could open the door to bigger ones was reflected in the fundamentalist backlash that accompanied the Court ruling.
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’.
VOICES FROM THE FRONTLINE
Virginia Gómez de la Torre, president of the feminist coalition Fundación Desafío, spoke to us about the progress made and challenges remaining for sexual and reproductive rights in Ecuador:
This has been a struggle of many years. Women’s rights organisations have been defending therapeutic abortion and abortion in cases of rape since 2008, when the new constitution was drafted and when anti-rights groups tried to repeal therapeutic abortion. They wanted to deprive Ecuadorian women of access to abortion under any circumstances.
Within this framework, the proposal to legalise abortion in cases of rape was brought forward in 2012, when a new Criminal Code was drafted. In 2013, then-President Rafael Correa – the most powerful of anti-rights activists – excluded this possibility. He threatened to resign and used the typical cliché that the constitution guarantees and protects life from the moment of conception.
In 2019, the issue of the decriminalisation of abortion in cases of rape was raised again as a result of a legislative initiative coming from the Public Defender’s Office. The National Women’s Coalition of Ecuador (CNME) and Fundación Desafío once again worked for decriminalisation in cases of rape. But at the last minute, during legislative negotiations, the issue was used as a bargaining chip, and we lost the vote. We had the 70 votes needed to pass a motion in the Assembly, but several Assembly members from parties that had pledged their support ultimately voted against it. We lost and the process took another course, that of the Constitutional Court.
Two months before the vote, Fundación Desafío and CNME had already filed a complaint of unconstitutionality and a complaint of non-compliance with the Constitutional Court, because women of this country have no confidence that the powerful will look after our interests. In December 2019 these two lawsuits were admitted and in November 2020 other women’s organisations joined in, as well as the Ombudsman’s Office.
For those of us who have devoted our lives to this and will continue to do so, this change has a great symbolic impact, even though it is a small step. Obviously, the legalisation of abortion in cases of rape is something huge for raped girls, of whom there are many in Ecuador, and more generally for the women who can now end a pregnancy that is the result of a crime, if they choose to do so.
And although no progress has been made in recognising the right of all women to decide about their own bodies in any circumstance, symbolically it is a huge step forward because it demystifies abortion and the possibility of making decisions about the course of a pregnancy in cases of rape. It is now legal to make decisions about the body of a pregnant woman who has been raped; the state has given its approval and for the first time has put the victim at the centre of the debate. So why shouldn’t women who have not been raped be able to make similar decisions about their bodies? I think these are the shifts that are implicitly taking place.
The next step in the very short term will be to also decriminalise abortion in cases of lethal foetal malformation. The scenario of total decriminalisation needs to be raised in the Assembly, as has happened in other countries. The Assembly may say no, but that is the way forward and someone needs to do it.
This is an edited extract of our interview with Virginia Gómez de la Torre. Read the full interview here.
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.
OUR CALLS FOR ACTION
The government of Ecuador should respect the spirit of the Constitutional Court’s ruling by enacting procedures that do not impose legal or de facto barriers on access to abortion in cases of rape.
Human rights institutions in other countries in Latin America and the Caribbean should consult with women’s rights organisations over a pathway to abortion law reform.
International donors and global civil society should support the struggle for abortion rights as a key element in advancing women’s equality and human rights in Latin America and the Caribbean.
Cover photo by Franklin Jacome/Agencia Press South/Getty Images