This post was written by Francisco J. Quintana (Legal Intern from Universidad Torcuato Di Tella) and Paula Avila Guillen (Institute Associate) of the O’Neill Institute for National and Global Health Law. Any questions or comments about this post can be directed to email@example.com or firstname.lastname@example.org.
In October 2012, Uruguay became one of the few Latin American countries to decriminalize abortion outside the frame of specific exceptions (such as rape and the risk of maternal death), by sanctioning a new law, which amended the Criminal Code. Besides Uruguay, only Cuba and Guyana have decriminalized abortion in the Latin America region. The Uruguayan law, which came into effect last December, waives criminal penalties for abortion in the first 12 weeks of gestation, with certain procedural requirements, and in the first 14 weeks of gestation in the cases of rape. Moreover, the law abolishes all criminal penalties, regardless of the timing of the abortion in the cases when the fetus is severely malformed, or when the mother’s life is threatened.
The new law was highly controversial in a deeply Catholic Latin American country. Latin American countries have some of the most restrictive abortion policies in the world. Several countries, such as Chile, El Salvador, and Nicaragua have absolute bans on abortion.
Article 325 of the former Criminal Code (modified by the recently sanctioned law) stated that a woman who causes her own miscarriage, or consents to undergo an abortion performed by another person, is subject to three to nine months’ imprisonment. Additionally, former Article 328 stated that punishment would be waived if the abortion was performed by a physician with the woman’s consent and if performed (a) to save the honor of the woman, that of the wife, or that of a relative; (b) in cases of rape; (c) for serious health reasons; (d) or in cases of economic hardship. Apart from the exemption of punishment in cases where health of the pregnant woman was seriously endangered, all other cases required the abortion to be performed during the first trimester.
In 1985, the first legislative project to decriminalize abortion was submitted. That project spurred a series of legislative initiatives for decriminalization. This cycle was supposed to end with the approval of the Sexual and Reproductive Health Law on November 11, 2008. Its Chapter II regulated the voluntary termination of pregnancy. Nevertheless, this bill was vetoed by then President Tabaré Vázquez. The veto was widely criticized. It was argued that the arguments used in the veto were imprecise and generic, based on false assumptions and disregarded international obligations assumed by Uruguay to respect and guarantee the human rights of women.
This time, the Uruguayan Senate approved the bill by 17 to 14 votes and the Uruguayan Congress did so by an even narrower 50-49 vote. Unlike its predecessor, current President José Mujica signed the bill, as he had promised during his presidential campaign.
The Uruguayan sanitary authorities intend that abortions take place within the own homes of the women, through the use of misoprostol and mifepristone. This is similar to the requirements for abortions in Mexico City, where abortion was decriminalized in 2007. The will of the woman will be respected, but priority will be given to the home abortion over surgical procedures.
The new law does not legalize abortion, but waives its criminalization when the woman takes certain steps. These requirements do not apply for victims of rape or incest. The only requirement in those cases is the filing of a criminal complaint. The law requires women seeking abortions to consult a gynecologist and inform him about her decision to end her pregnancy. Within 24 hours, the doctor is required to consult an interdisciplinary team of at least three professionals, including at least one gynecologist, one mental health professional, and one specialist in social support. The interdisciplinary team must meet with the woman to inform her about the law, the process of abortion, and any inherent risks of the procedure. The panel would also be tasked with offering advice on alternatives, including parenting support services or placing the child up for adoption.
After the woman meets with the team, the law requires a five-day reflection period before she can reassert her choice to continue with the abortion. The law mandates the professionals to avoid making moral judgments. The decision to have the abortion remains solely with the woman. If the woman reasserts her choice to continue with the abortion, she must sign the informed consent document, proceeding thereafter to carrying the abortion through the medicines mentioned above, unless a surgical procedure needed to be performed, in light of the medical history of the woman.
Human Rights Watch stated that, while the new law represented “an advance in the region,” “the procedural provisions – in particular the mandatory five-day reflection period and consultation with the panel – could amount to an arbitrary barrier to accessing abortion services”. In their report, they quoted the United Nations Special Rapporteur on the Right to Health, who had “found that legal restrictions can make legal abortions inaccessible.” Human Rights Watch listed “examples of abortion restrictions that the Rapporteur criticized in a 2011 report,” including “’requirements of counseling and mandatory waiting periods for women seeking to terminate a pregnancy” and “requirements that abortions be approved by more than one health-care provider.’”
Interviewed by GlobalPost, an international news US website, Marta Agunin, of Montevideo-based rights group Woman and Health, was highly critical of the bill, “which she said failed to guarantee a woman’s right to choose.” Agunin told GlobalPost that “they are putting so many obstacles in the way that women may still end up seeking backstreet abortions and we will be back to square one.”
The Executive Branch regulated the law and issued a procedures manual for the institutions and health professionals, and a technical guide for the assistance of legal abortions. Both the law and the regulations allow institutions and professionals to invoke conscientious objection in order to avoid performing abortions. Aware of the criticisms, currently, the Ministry of Health is considering modifying these regulations, in order to limit the possibility of invoking conscientious objection. This attempt has been criticized by the conservative opposition.
Regarding institutions, the law establishes that all of them have the obligation to comply with the abortion procedure described in the law. However, the law allows institutions with “ethos” objection to agree with the Ministry of Health on alternative ways to comply with the law. The current regulation establishes that institutions must justify their positions, according to their by-law in force at the time the law was approved. At the moment, two institutions have announced their refusal to practice abortions.
In the case of doctors, the law establishes that they can invoke conscientious objection solely by communicating their decision to the authorities of their own institutions. Neither the current law nor the current regulations require the doctors to justify their positions. Conscientious objection exempts the doctors from performing the abortion procedure, but does not exempt them from providing support nor from performing the steps prior to the abortion.
The Ministry of Health is considering modifying these regulations, in order to limit the possibility of invoking conscientious objection. The Deputy Health Secretary, Leonel Briozzo, argued that there is currently “a great confusion” regarding the meaning of conscientious objection, its scope and the cases in which the doctors have the right to invoke it. Briozzo publicly suggested that doctors should have to justify their decision to invoke conscientious objection.
The conservative opposition has criticized the attempt by the Ministry of Health. Javier García, congressman and doctor, stated that it was “unacceptable” to ask the doctors to justify their positions. García argued that the law does not require justifications and, thus, a Ministry of Health regulation could not require them. “In a rule of law democratic state, authorities must not ask citizens to justify their beliefs.”
While, as García states, democratic states must respect the beliefs of their citizens, the debate should take context into account. Despite Latin America’s restrictive policies, the region has one of the world’s highest abortion rates: more than 30 per 1,000 women of childbearing age have undergone an abortion, compared to fewer than 20 in the U.S. and 12 in Western Europe. As stated by the World Health Organization in its latest report on unsafe abortion, almost all unsafe abortions occur in developing countries where maternal mortality rates are the highest and where access to safe abortion is limited. However, the decriminalization of abortion has proved an effective measure to achieve lower rates in abortion and maternal mortality. Thus, considering the above, the decriminalization of abortion could lead to drastic changes towards improving the reality of women’s lives in Uruguay, especially those who are in particularly difficult situations.
 Cabrera, Oscar A., Hevia, Martin, Gómez-Lugo, Fanny and Banfi-Vique, Analia, The Politics of Reproductive Health Rights in Uruguay: Why the Presidential Veto to the Right to Abortion is Illegitimate (2011). Revista de Direito Sanitário, São Paulo – Journal of Health Law, July 2011. Available at SSRN: http://ssrn.com/abstract=2057994
The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.