CHARLES UNIVERSITY in PRAGUE Master Thesis 2020 Alexa E. Quiles H

CHARLES UNIVERSITY IN PRAGUE

FACULTY OF SOCIAL SCIENCES

Institute of Political Studies

Master thesis

2020 Alexa E. Quiles H. CHARLES UNIVERSITY IN PRAGUE

FACULTY OF SOCIAL SCIENCES

Institute of Political Studies

Alexa Elleny Quiles Hernández

Legalization of Abortion in Argentina: A Path-Dependency Reading of the Influence of the Catholic Church and the Contrast with

the Uruguayan Experience

Master thesis

Prague, 2020

Author: Alexa Elleny Quiles Hernández

Supervisor: Mgr. Eva M. Hejzlarová, Ph.D.

Academic Year: 2019/2020

Bibliographic note

Quiles, A. (July, 2020). Legalization of Abortion in Argentina: A Path-Dependency Reading of the Influence of the Catholic Church and the Contrast with the Uruguayan Experience. 82 p. Mater thesis. Charles University, Faculty of Social Sciences, Institute of Political Studies.

Supervisor: Mgr. Eva M. Hejzlarová, Ph.D.

Abstract

Argentina’s abortion laws only allow women to access a lawful procedure in cases of rape and health or life threat, and this has been driving women who do not wish to continue a pregnancy into criminal considerations and, in many cases, dangerous and unhygienic environments.

The aim of this work is to delineate part of the historical path that has forged the strong relations between the Argentinean State and the Catholic Church since the colonial period and the influence this has had on restrictive abortion rights for women today despite the growing number of demands to legalize voluntary termination. To highlight this influence, this study contrasts the Argentinean experience with that of neighboring Uruguay, a country that successfully legalized abortion in 2012 and which drew an effective division between the Church and the State at an early stage, furnishing a more autonomous environment for the government to respond to citizens’ needs.

For this, this work takes on Paul Pierson’s approach to increasing returns and path-dependency theory and researches and analyzes events, dynamics and factors that have paved divergent paths for two States that, despite having shared a similar background, have produced different outcomes when it comes to women’s reproductive rights.

Keywords Argentina, Uruguay, path-dependency theory, voluntary pregnancy termination, Latin America, reproductive rights, Catholic Church, increasing returns Range of thesis: 179,860 characters (including in-text references and spaces); 82 pages.

Declaration of Authorship

1. The author hereby declares that he compiled this thesis independently, using only the listed resources and literature.

2. The author hereby declares that all the sources and literature used have been properly cited.

3. The author hereby declares that the thesis has not been used to obtain a different or the same degree.

Prague, July 29, 2020 Alexa Elleny Quiles Hernández

Acknowledgments I would like to thank every woman, especially my mother and two sisters, who has taught me all about women’s resilience, power, intelligence, strength, and undying courage. Thank you for inspiring me every day to take part, in whatever small way, in this fight that must be fought. Thank you to my supervisor Mgr. Eva M. Hejzlarová, Ph.D. and Mgr. Ing. Vilém Semerák, Ph.D. for your advice and guidance.

This work is dedicated to all those women who have faced a decision from which they could not look away, especially to those who have made a choice in fear and surrounded by judgement. To their strength, their pain, and solace.

“La maternidad será deseada o no será.”

Master Thesis Proposal Institute of Political Studies, IEPS programme Faculty of Social Sciences Charles University in Prague Date: 03.05.2019 Author: Alexa Quiles Supervisor: Mgr. Eva M. Hejzlarová, Ph.D E-mail: [email protected] E-mail: [email protected] Phone: 773519095 Phone: 224491496 Specialization: IEPS Defense June 2020 Planned:

Proposed Topic: Liberalization of Abortion in Argentina: Implications of the Values Embedded in the Nation’s Legislative Power, the Influence of the Catholic Church and the Contrast with the Uruguayan Experience

Registered in SIS: Yes Date of registration: 20.05.2019

Topic characteristics / Research Question(s):

My thesis will focus on the following general questions: How have the values embedded in Argentina’s legislative branch shaped the nation’s restrictive abortion policy despite a strong public clamor to liberalize it? When contrasting this policy process with that of Uruguay, where abortion was legalized regardless of cause in 2012, what differences can we see regarding entrenched social and religious values in both countries’ public institutions, especially considering the secularity of the Uruguayan State? What is the influence of these differences in respect to each countries’ policy processes and outcomes when it comes to pregnancy termination? Has the impact of Uruguay’s legalization of abortion irrespective of cause been positive in regards to women dealing with unplanned pregnancies and their health? How can the female population benefit from the legalization of voluntary abortion?

By focusing on the religious values present in the legislative power in Argentina, along with the substantial role that the Catholic Church holds over legislative affairs, pertinent information will be reviewed –quantitative and qualitative data from academic studies, media reports, legal texts, public statements and surveys– and analyzed in order to demonstrate the path-dependency created since the drafting of the current Argentinean Constitution, which has resulted in a sturdy, resilient hindrance to change regarding the precarious legal and health conditions circumjacent to the Argentinean female population and their right to decide over their maternity. Furthermore, a contrast will be made between the different abortion policy processes in Argentina and Uruguay, where voluntary termination has been liberalized and where we can see a clear-cut division between the State and the Church, resulting in laxer values regarding women’s reproductive rights and a break between the private and the public in the latter case.

The liberalization of abortion is a matter of human rights and social justice as it includes debates on life, mental and physical health, medical attention, equality, inclusion, personal safety, privacy and freedom of choice. Giving women the right to choose over their maternity can derive in social benefits in the form of more optimal life-planning and lower maternal death rates, as demonstrated

7 by the Uruguayan case and other case studies from nations where abortion has been widely liberalized.

Working hypotheses: 1. Hypothesis #1: There are underlying historical values derived from the historical link between the Catholic Church and the Argentinean government that have shaped Argentina’s legislative power and affected the public policy process regarding the liberalization of abortion in the country evidencing a path-dependency that has resulted in a partial secularization of the state. 2. Hypothesis #2: There is a difference in the public policy process regarding voluntary pregnancy termination that derives from the presence or lack of a link between the Church and the State, as demonstrated by the contrast between the Argentinean and Uruguayan processes in the matter. 3. Hypothesis #3: The liberalization of abortion regardless of cause in Uruguay has had a positive impact on those women who face unplanned pregnancies, especially when it comes to their health, which can serve as a basis for the justification of legalization in other Latin American countries with restrictive reproductive rights for women, such as Argentina. 4. Other hypothesis: a. The liberalization of abortion can have a positive impact on the physical and mental health of women who confront an unplanned pregnancy.

Methodology:

Theoretical background  Change-resistant institutions could be explained by Paul Pierson’s theory of historical institutionalism which draws on the concept of “path-dependency” to give account as to why certain events and actions in the past can have strong influence in the outcome of a process as a result of a sequence of historical episodes. Path-dependency illustrates the hardships of bringing about change in a sequence of events that has already set the way for future decisions; allowing for a different outcome to emerge would be too costly and would diminish returns.

According to Pierson, institutions shape the goals, interests and courses of action of actors who are driven by rational calculation and social norms, strongly determining political action and fashioning the development of public policy. Historical institutionalism explains the way history impacts the institutional development of public policy at a later time, governing to a certain extent how actors behave and the decisions they make in a contemporary setting.

Methods: Review of the historicity of the Argentinean Constitution and its link to Catholicism. - Analysis of a letter emitted by the Catholic Church that implicates its tight links with the Argentinean military regime of the mid-70s and early 80s. - Review of the current links between the Catholic Church and the Argentinean state via budgetary allocation of resources for the salaries of Argentinean bishops. - Review of Senator’s claims on the pressure exerted by the Catholic Church on the Senate to reject the 2018 bill on the liberalization of abortion and the Church’s public stance on the matter. - Analysis of data that reveals the influence of religious perceptions on Congressmen’s legislative decisions. - Review of the historicity of the Uruguayan Constitution and its early implementation of secularism.

- Contrasting analysis of data between the previous state of affairs, characterized by restriction, and the impact of the liberalization of abortion in Uruguay after legalization.

Outline:

I. Introduction II. Definition of the cognitive problem. - Background of legislative attempts to liberalize abortion in Argentina. - Definition of hypotheses. III. Recapitulation of the current state of knowledge. - Description of hurdles faced by women who seek to terminate a pregnancy in Argentina: medical and legal. - Feminist movements in the nation that call for liberalization. - Argentinean Constitutional structure: passing a law. - 2017 bill proposal for the liberalization of abortion in Argentina. IV. Theoretical background. - Path-dependency theory: Paul Pierson. V. Outline of the methodology used. - Methods. - Limitations. VI. Analytical procedure and results. - Historical background of the Argentinean Constitution. - Article 2 and analysis: is the Argentinean State truly laic? - Historical link between the Catholic Church and the State: Church support of military junta during dictatorship. - Budgetary allocations from the State to the Church. - The influence of the Church and religion in the blocking of the 2017 bill. VII. Comparative analysis: Uruguay’s experience and lesson-learning. - Uruguay’s Constitutional structure. - Uruguay as a secular nation: early separation between the State and the Church. - Uruguay’s liberalization of abortion. - Impact on Uruguayan society: contrast then and now. - Differences between the Argentinean and the Uruguayan processes: society, legislation and the influence of the Church. VIII. Conclusions. IX. References

References / Bibliography: Caballero, L. (1992, June). La Cuestión Religiosa en la Constitución Argentina. Universidad de Navarra. Retrieved from https://dadun.unav.edu/bitstream/10171/10686/1/CDIC_11_02.pdf

Informe: Situación del aborto en la Argentina. (2016, October). Centro de Estudios Legales y Sociales. Retrieved from https://www.cels.org.ar/web/wp- content/uploads/2017/06/situación-del-aborto-en-la-argentina.Informe-CEDAW.pdf

Mallimaci, F. (2018, August 26). PRIMERA ENCUESTA SOBRE CREENCIAS Y ACTITUDES RELIGIOSAS EN ARGENTINA. Conicet. Retrieved from http://www.ceil- conicet.gov.ar/wp-content/uploads/2013/02/encuesta1.pdf

Mignone, E. (1986). Iglesia y dictadura: La experiencia argentina. Nueva Sociedad, (82), 121- 128.

Pierson, P. (2000). Increasing Returns, Path Dependence, and the Study of Politics. American Political Science Review 94 (2): 251–267.

Date:May 9, 2019

Approval of the supervisor (signature or a faximile):

Contents

Master Thesis Proposal ...... 7 Contents...... 11 1. Introduction ...... 13 1.1 Statement of Problem ...... 14 1.2 Purpose of Study ...... 15 1.3 Research Questions ...... 15 1.4 Proceedings ...... 16 1.5 A Consideration ...... 17 2. Literature review...... 17 2.1 Introduction ...... 17 2.1.1 A consideration ...... 18 2.2 Argentina’s Current Legal Framework on Voluntary Pregnancy Termination ...... 18 2.2.1 Criminal Code on Pregnancy Termination, Civil Code on the Beginning of Life and Constitutional Rights of the Unborn ...... 19 2.2.2 Protocol for the Integral Attention to the Persons who enjoy the Right to a Legal Pregnancy Termination...... 20 2.2.3 The 2018 Bill: Law Project for the Voluntary Interruption of Pregnancy ...... 22 2.2.3.1 Reaction and Discussion of Proposal...... 26 2.3 Uruguay’s Legal Framework on Voluntary Pregnancy Termination: from Criminalization to Decriminalization and Legalization ...... 27 2.3.1 Law 9.763, Civil Code on Persons and those who are Subject of Constitutional Rights 27 2.3.2 Ordinance 369/04 and the 2012 Voluntary Termination of Pregnancy Law/Abortion Law (Law N° 18987) ...... 30 2.3.2.1 Critique of Uruguay’s Voluntary Termination of Pregnancy Law/Abortion Law (Law N° 18987) ...... 33 2.4 Contrasting Summary of Argentinean and Uruguayan Laws on Pregnancy Termination ... 34 2.5 Literature Review of Previous Research Regarding the Relationship between the Catholic Church, Catholic Religion and the Argentinean and Uruguayan States ...... 39 2.5.1 Argentina and the Role of the Catholic Church and Religion in State Matters ...... 39 2.5.2 Uruguay and the Laic State ...... 44 2.6 Conclusion ...... 53

3. Theoretical Background: Paul Pierson’s Increasing-Returns-Based Approach to Historical Institutionalism and Path-Dependency Theory...... 54 4. Methodology...... 59 4.1 Introduction ...... 59 4.2 Methods of Data Collection ...... 60 4.3 Limitations ...... 66 5. Results...... 67 5.1 Contrasting Uruguay and Argentina: Short Background Leading up to both States’ Constitutional Bodies and the Role of the Catholic Church in these Processes ...... 67 5.1.1 The Role of the Catholic Church during the Colonial Period in Argentina and its Privileged Position in the Argentinean Constitution ...... 67 5.1.2 Uruguayan Liberal Tradition: Relevant Events that have shaped it and the Formation of a Secular State ...... 71 5.2 Contrasting Uruguay and Argentina: The Role of the Catholic Church during both Countries’ Military Regimes ...... 74 5.2.1 The Argentinean Episcopate and the Military Junta of 1976-1983: A Mutually- Supporting Relationship ...... 74 5.2.2 Part of the Resistance: The Church during the 1973-1985 Civic-Military Regime in Uruguay ...... 77 6. Analytical Procedure and Discussion of Results: Framing through Paul Pierson’s Approach to Path Dependency ...... 80 6.1 Timing and Sequence: Evangelization, the Royal Patronage, the Installment of Catholic Education and European Immigration ...... 80 6.2 Increasing Returns Dynamics and Path-Dependency: Actors’ Assessment on the Benefits of an Interdependent or Independent Relationship ...... 83 6.3 Both Countries’ Relationship with the Church: Implications in Voluntary Pregnancy Termination Laws ...... 88 7. Conclusion ...... 90 Bibliography ...... 95 List of Annexes ...... 104 Annexes ...... 105

1. Introduction

More than 95% of women in Latin America and the Caribbean live in countries with restrictive abortion laws; abortion as a woman’s choice regardless of cause is only accessible for 3% of the female population (The Economist, 2018). This places women who seek to obtain safe, sanitary abortion procedures under very strenuous circumstances if they do not have the adequate means and a secure support network to undergo a successful process. In Argentina, it is estimated that around 460,000 to 600,000 women undergo clandestine abortions per year, and this in turn derives in about 53,000 hospitalizations in public clinics due to complications –15% of these women are teenagers under the age of 20 and 50% are women between 20 and 29 years old (Centro de Estudios Legales y Sociales, 2016). The need for these women to have an abortion performed has led them to put their lives at risk by self-inducing the termination of their pregnancy or by attending precarious hospitals where the procedure is done under unhygienic conditions. Over the last three decades, abortion complications have been the primal cause for maternal mortality in this South American nation (Centro de Estudios Legales y Sociales, 2016). In 2016, there were 43 registered deaths resulting from an abortion (Chequeando, 2018).

The Argentinean law system permits women and healthcare personnel to terminate or assist on the termination of a pregnancy only for the causal of rape or if the mother’s life or wellbeing is at risk due to health reasons (Pardo, 2018). This places those who seek to terminate it, or facilitate this termination, as a voluntary choice under criminal considerations. The context surrounding women in Argentina has sparked intense debate about the liberalization of abortion over the past years, reaching a peak in 20181 when the Argentinean Congress discussed, and later rejected, the latest proposal regarding the matter. The public, civic and media sectors have engaged in heated discussion that has resulted in two distinct stances. On one hand, there are those who claim that it is necessary for the State to legalize and decriminalize voluntary termination and allow women

1 The heated debate reached high levels of media attention and broke in the international level as non- governmental organizations were actively involved in an effort to exercise international pressure on the Argentinean government. For example, NGO Amnesty International placed an advertisement-infographic in American publication The New York Times with the slogan “THE WORLD IS WATCHING”, the hash-tag #AbortoLegalYa (#LegalAbortionNow), and quick information regarding women’s abortion rights in Argentina (de Carlos, 2018). 13 the freedom of choosing over their reproductive rights –this would establish a public health regime that would put women in safer positions and diminish the physical and mental strain of clandestine abortions (especially when it comes to those who live in precarious conditions and are unable to afford low-risk abortion alternatives). On the other hand, there is the branch that opposes the decriminalization of voluntary termination of pregnancy on grounds of morality and the never-ending religious debate around the question of when a fetus should be considered a human being and, therefore, if a woman who purposely decides to terminate her pregnancy is liable for murder.

1.1 Statement of Problem

It has become clear that women in Argentina face a burdensome and grueling decision if confronted by an unwanted pregnancy; their freedom to choose has been undermined by the current legal framework. These women have to decide between becoming criminals under the present-day law and putting themselves at considerable health risk, or accepting a future that now seems undesirable. As more and more women experience this kind of judgment, the need for public policy actors to take action on the matter and integrate contemporary society’s claims grows, especially if it is considered that a significant part of Argentinean society has become substantially vocal about their claims for the legalization of abortion and the expansion of women’s reproductive rights. So far, there has been a considerable number of rejected proposals for liberalization that have already been put forward by policy-makers and society sectors since 2007. So why has change been so reluctant to materialize? This question could be partly answered by looking at the influencing factors that have shaped the legislative and executive limbs of the Argentinean State –more specifically, the prominent historical relationship between the Catholic Church and the Argentinean government and the actors, events and context that has shaped it.

The influence that the historical link forged between the Catholic Church and the Argentinean government has had on the public policy process regarding women’s abortion rights becomes more crystalline when it is compared to that of a State that has successfully separated religion and the State, such as Uruguay. As Latin America has been partly built upon its colonial history and colonial evangelization, most Latin American governments today widely refuse to legalize and decriminalize abortion as most societies remain conservative. In the region, only Uruguay, Cuba, 14

Puerto Rico, Guyana, French Guyana –an overseas French department–, and the local government of Mexico City and the state of Oaxaca in Mexico have decriminalized voluntary abortion during the first few weeks of pregnancy. In contrast, El Salvador, Honduras, Nicaragua and Haiti lawfully prohibit it even in cases of rape or threat to the mother’s health (see Annex 1 for a visual map regarding abortion law difference throughout Latin America).

1.2 Purpose of Study

The following research aspires to overview the overall historical process that has paved the close link between the Argentinean State and the Catholic Church since before its first Constitution (1853) and the influence this has had on women’s abortion rights in the country today. More specifically, it seeks to uncover whether the State’s historically close relationship with the Church has affected women’s abortion rights and freedom in Argentina by developing change-resistant institutions. To highlight the influence that these links may have had in the Argentinean case, a contrast will be made with the route taken on this same matter by neighboring Uruguay, where voluntary termination was decriminalized in 2012 and where we can see an early clear-cut division between the State and the Church –this has resulted more autonomous policy-making processes and an easier path towards the legalization of abortion.

To answer the question of how the historical nature of the Church-State link in Argentina has contributed to the State’s restrictive abortion policy despite a strong public clamor to decriminalize it, this analysis will be conducted through the eye of Paul Pierson’s take on change- resistant institutions, historical institutionalism and increasing-returns-based path-dependency theory. It will highlight the difference between a State that has resisted path-change and one that has worked to break the link between religion and public policy since early days. It will also seek to uncover if these differences have had an impact on both States’ current environment regarding women’s abortion rights.

1.3 Research Questions

The leading research question this work seeks to answer is: Has the relationship between the Church and the Argentinean State affected women’s abortion rights in the country by developing

15 change-resistant institutions (as approached through Paul Pierson’s returns-based path- dependency theory)?

Other main questions are the following:

1. When contrasting Argentina’s policy process regarding women’s right to voluntary pregnancy termination with that of Uruguay, what differences can we see regarding the influence of the Catholic Church and the nature of the relationship Church-State in both countries?

2. Has the diverging nature of these relationships affected the environment in which public policies and laws are enacted and exercised when it comes to women’s abortion rights? Has it affected the choices of decision makers?

3. Can the differences in both countries’ relationship with the Catholic Church be answered through Paul Pierson’s path-dependency theory and increasing returns approach when looking at historical events that may have shaped divergent paths for women’s abortion rights?

4. How do these settings regarding the health and legal status of women who voluntarily terminate a pregnancy differ?

1.4 Proceedings

First, a law literature review will be provided, which seeks to overview the current penal code guiding abortion laws in Argentina and the modifications proposed by the 2018 bill. This will be contrasted with Uruguay’s past and current regulations on the same matter. Then, two academic articles by experts on Argentina’s and Uruguay’s State relationship with the Church will be reviewed in order to assess some of the knowledge that has been produced on this topic. Later, the theoretical approach taken by this work and based on Paul Pierson’s theory of path dependency, as explained in his 2000 article Increasing Returns, Path Dependence, and the Study of Politics, will be summarized and overviewed.

Additionally, this work will outline the methodology used to gather information and knowledge on historical events, contexts, actors and regulations that may have influenced both country’s divergent paths on State-Church relations, along with events that may demonstrate the strength

16 or weakness of these relations and that may have enforced these paths further. Finally, the results of this research will be presented and later analyzed to frame them through the eye of increasing returns dynamics and path-dependency theory. The conclusion will assess whether this work’s research questions were successfully answered.

1.5 A Consideration

In Latin America, a very small number of women enjoy the right to decide if they will terminate a pregnancy or not regardless of the motivation –the general debate regarding abortion rights is centered on whether the fetus can be considered as a new independent life from conception and if a woman would be acting against this new life if she undergoes a voluntary abortion2. Following this consideration, it must be stated that this work does not seek to engage in an ethical, scientific or religious discussion about when life should be considered to begin, but rather explain the differences between two separate institutional settings and history-driven public policy processes on the matter of women’s right to voluntary abortion regardless of cause. This research work takes on the premise that women should enjoy full control over their reproductive lives in order to ensure their well-being. It also departs from the understanding that those who seek to terminate a pregnancy in a restrictive framework have only the choice of a clandestine or dangerous abortion if their means do not allow them to access a safer environment.

This work also sees and approaches the State as the main guarantor of such a right3, particularly in mature democracies where the public policy process and resulting laws should mirror the needs of society regardless of religious credence or polarized and unresolved ethical assumptions.

2. Literature review

2.1 Introduction

2 The nature of this debate is, therefore, different from discussions surrounding other sexual and reproductive rights such as same-sex marriage and access to birth control since the idea of there being new life brings in the possibility of the existence of a second person who could be subject of autonomous rights. 3 The present work approaches the State as an entity that holds the objective and capacity of protecting its citizens from violence and other misfortunes and as an actor that must positively intervene in order to furnish equal conditions for all citizens and ensure women’s right to agency. 17

Firstly, this literature review will provide an overview of Argentina’s current legal framework surrounding women’s reproductive rights on the matter of voluntary abortion, including an outline of the Criminal Code, Civil Code and Constitutional provisions criminalizing it, along with the country’s health protocol regarding the treatment of women who terminate a pregnancy within the legal framework and the gaps it breaches in respect to the existing Criminal Code.

Then, a rundown of the 2018 proposal bill will be laid out in order to compare it with the current legal framework and some considerations regarding the public and political discussion surrounding the proposal will be sketched. Similarly, Uruguay’s Criminal Code provisions which effectively criminalized voluntary termination of pregnancy until 2012 and the 2012 law that effectively legalized it will also be overviewed, along with some critical considerations. Both settings will be then compared back-to-back.

Finally, two academic articles regarding both Argentina’s and Uruguay’s relations with the Church throughout history will be reviewed. First, Religious Influence on Parliamentary Decisions on Sexual and Reproductive Rights by Argentinean researcher Juan Cruz Esquivel will be explored. Then, Uruguayan Néstor da Costa’s La laicicidad uruguaya (The Uruguayan Laicicity) will be discussed.

It should be noted that all the titles of legal documents in this review, along with their content, and the names of government agencies that this text refers to were translated from Spanish to English by this work’s author.

2.1.1 A consideration

Before undertaking this literature review, it is pertinent to mention that there is a technical difference between the terms “decriminalization” and “legalization”. The first refers to the act of removing possible criminal penalties for gestating persons who undergo a pregnancy termination. The second refers to establishing the State as guarantor of the right to a safe termination, even within the private healthcare structure (Martín, 2018).

2.2 Argentina’s Current Legal Framework on Voluntary Pregnancy Termination

2.2.1 Criminal Code on Pregnancy Termination, Civil Code on the Beginning of Life and Constitutional Rights of the Unborn

The current Argentinean Criminal Code –active since 1922– stipulates the following outlined articles regarding the criminalization of women who undergo an abortion and of those who perform the procedure (see Annex 2 for the full text of Argentina’s Criminal Code articles on pregnancy termination):

- “ARTICLE 85: Who causes an abortion will be penalized with: o Imprisonment of three to ten years, if they act without the agreement of the woman (…). o Imprisonment of one to four years, if they act in agreement with the woman. - ARTICLE 86: Doctors, surgeons, midwifes and pharmacists who abuse their art or science to cause or cooperate in the performance of an abortion will incur the same penalties established in the previous article and will suffer, in addition, the disqualification from their profession for double the time of that of the conviction. - ARTICLE 88: The woman who causes her own abortion or is in agreement with whoever causes it will be subject to one to four years of imprisonment. The attempt of a woman is not punishable” (Código Penal de la Nación Argentina, 1984).

The exemptions of penalty for abortion are outlined in Article 86:

- “Item 1: If it has been performed with the goal of avoiding danger to the life or the health of the mother and if this danger cannot be avoided through other means. - Item 2: If the pregnancy is the result of rape or assault on an idiotic or demented woman4. In this case, the agreement of her legal representative must be required for the abortion” (Código Penal de la Nación Argentina, 1984).

4 It is relevant to note that while Argentina’s criminal code enlists rape as a lawful causal of abortion, the verbiage utilized in Item 2 of Article 86 –“If the pregnancy is the result of a rape or assault on an idiotic or demented woman” (Código Penal de la Nación Argentina, 1984) – resulted in a controversy regarding a legal lagoon for raped persons who were not deemed “idiotic or demented”. At last, this lagoon was bridged by a 2012 sentence (F,. A. L s/self-satisfied measure) that clarified that this exemption from punishment is applicable to all rape cases, regardless of mental health (Corte Suprema de Justicia de la Nación, 2012). 19

For its part, Argentina’s Civil Code explicitly considers conception as the beginning of life5:

- “ARTICLE 19: Beginning of life. The beginning of life of the human person commences since conception (Código Civil y Comercial de la Nación, 2015)”.

Lastly, the Nation’s Constitution outlines the provision of rights to the unborn since the woman’s pregnancy:

- “Article 75: It is the duty of the Congress to: o Dictate a special and integral regime of social security for the protection of a child subjected to neglect, from pregnancy until the end of elementary education, and of the mother during pregnancy and lactation (Constitución de la Nación Argentina, 1995)”.

The current constitutional and legal framework regarding Argentinean women’s right to voluntarily terminate a pregnancy places them –and those who participate in the abortion, including medical staff– under liability of prison time and punishment based on the Constitution’s and Civil Code’s understanding that human life begins at the moment of conception and that, therefore, the unborn, regardless of how many weeks into pregnancy they are, are subject of the right to be free of “neglect”. Despite exempting women who were victims of rape or those whose life or health is threatened by the pregnancy, it can be inferred that such a setting places other women –such as domestic violence victims, sex workers, those pertaining to low-income communities, and uneducated women and teenagers– in a particularly precarious position when it comes to deciding over their maternity. This is due to the possibility for these regulations to drive women into clandestine procedures that could potentially be life-threatening in case of an unplanned pregnancy.

2.2.2 Protocol for the Integral Attention to the Persons who enjoy the Right to a Legal Pregnancy Termination

5 The Argentinean Civil Code that proceeded the current code, which came into force in 2015, went further in explicitly establishing that the unborn were to be subjects of rights since conception in Article 70, which provisioned that “the existence of persons begins since conception in the maternal womb; and before their birth they can acquire some rights, as if they had been born already” (Código Civil, 2015). 20

Three points stemming from the previous considerations should be highlighted: (1) that the current Criminal Code does not explicitly establish a period of time in which a woman is legally allowed to undergo an abortion in the case of rape, health or life threat; (2) that it does not include threat to mental health in its scope for non-punishable terminations; (3) and that it does not have a clause regarding an individual´s right to conscious objection6 and duties in case a medical worker appeals to such a figure.

These gaps are bridged by the Ministry of Health’s Protocol for the Integral Attention to the Persons who enjoy the Right to a Legal Pregnancy Termination7 –which is stated to be an imperative for the exercise of sanitary national health of Argentina– in the following ways:

- By providing guidance on how to treat an abortion beyond week 28; therefore, it can be inferred that in the three above mentioned cases (threat to a woman’s health or life and rape) a woman or a medical staff member who undergoes or participates in an abortion beyond week 28 should not be subject to penalties. In short, legal abortion is not subject to a time limit and can be performed regardless of timeline. - By clarifying that a threat to psychological health is to be included as part of the scope of non-punishable terminations due to a health threat to the woman or gestating person8. - By establishing the right for an individual to exercise conscious objection given a number of considerations; including the requirement for objectors to make their preference known in an explicit and anticipated manner, and the specification that this figure is to be understood as, indeed, an individual right. Conscientious objectors are not able to exercise

6 Conscious objection gives medical staff, at the individual level, the right to refuse in the assistance of an abortion, but provisions the obligation of this individual to help the woman access adequate care to undergo the procedure. 7 As translated by this work’s author. Name in Spanish: Protocolo para la atención integral de las personas con derecho a la interrupción legal del embarazo. 8 This understating is based on the Dictum of the Official Advocacy before the CSJN, F.,A.L s/self-satisfied measure. File N. 259/2010, which established that “the law, with all right, demands health hazard, including psychological health” –as translated by this work’s author (Ministerio de Salud de Argentina, p. 15, 2019). This dictum was issued in 2010 as the result of an appeal to the right to abortion from the parents of a 13-year-old girl who became pregnant with her grandmother’s partner’s child as the consequence of rape. The girl’s parents requested her right to termination in order to protect her mental health, and the Criminal Chamber of Viedma provided the authorization for the girl to undergo the procedure due to a health threat to the girl´s psyche (Río Negro, 2009). This case reached the penal authorities despite Argentina’s Criminal Code’s inclusion of rape as a cause of lawful abortion due to denial of a local hospital to perform the procedure without a judicial disposition (Corte Suprema de Justicia de la Nación, 2010). 21

this objection in cases of emergency where the patient is in need of immediate attention in order to protect their health or life (Ministerio de Salud de Argentina, 2019).

Regarding the third remark, it is inferred that institutional conscious objection is not allowed – meaning that healthcare institutions should not establish such a figure in their statutes, preventing entire clinics or hospitals from denying a legal abortion to a woman due to an institutional provision. However, this is not explicitly stated in the Protocol.

2.2.3 The 2018 Bill: Law Project for the Voluntary Interruption of Pregnancy

A series of seven law projects regarding the decriminalization of abortion as a woman’s choice had reached the legislative arena in the Argentinean Congress over the years before 2018, but none of them approached the level of success achieved by that year’s attempt at decriminalization and legalization put forward by the National Campaign for the Right to a Legal, Safe and Free Abortion9. This project was backed by former president Mauricio Macri’s administration (term: 2015-2019).

In June 2018, the Argentinean Lower House of Congress approved a project that hoped to substitute the current Criminal Code’s provisions regarding the voluntary termination of pregnancy by decriminalizing it and making it legal for any causal in the first 14 weeks of pregnancy. Furthermore, the 22-article project titled LAW PROJECT – VOLUNTARY TERMINATION OF PREGNANCY sought to establish abortion as a woman’s right, providing them with the possibility of accessing the procedure at any public or private hospital or clinic part of the Nation- wide Argentinean healthcare system. In this way, the project did not only have the objective of decriminalizing the voluntary termination of pregnancy, but of also establishing it as a right to be accessed to by a gestating person –making it, in this way, legal. At the core of the proposal laid the following objective and guarantee:

9 The National Campaign for the Right to a Legal, Safe and Free Abortion is a federal alliance that gathers 305 groups, organizations, scientists, academics, unions, healthcare workers and a number of persons associated to cultural and social movements. This campaign has pushed and lobbied for the expansion of women’s reproductive and human rights since its founding in 2005 (Aborto Legal, n.d.). 22

- “ARTICLE 1: Objective. This law holds the objective of guaranteeing women’s or gestating people’s right to access a voluntary termination of pregnancy within its own provisions. - ARTICLE 2 – Protected rights. This law guarantees all rights recognized in the National Constitution and in human rights treaties ratified by the Argentinean Republic, especially rights related to dignity, life, autonomy, health, integrity, corporal diversity, intimacy, real opportunity equality, freedom of creed and thought, and to non-discrimination. In the observation of these rights, every woman or gestating person has the right to decide over the voluntary interruption of their pregnancy in accordance to what is established in this law” (Diputados Argentina, 2018).

It follows that the bill took on principles such as equality, freedom and dignity already established in the Argentinean constitutional law and ratified human rights treaties in order to protect the right of all gestating persons to be positively free of outside impositions that could undermine the mentioned principles. This would give way to the decriminalization and facilitation, and indeed guarantee, of voluntary abortion in the pursuit of equality of opportunity, autonomy, freedom of thought, non-discrimination, etc.

As stated, the proposed bill sought to decriminalize abortion regardless of cause up until week 14, and it also proposed to exempt from punishment those who underwent or performed pregnancy termination beyond week 14 in cases of rape, imminent danger to a woman’s life or health, or if the extra-uterine life of the fetus were to be found inviable10 (Article 18) –this last being a protection that the current Criminal Code does not provide in any case, which would have expanded the reproductive rights for women who are advised at a later pregnancy stage that the fetus is not viable.

10 Article 18 proposed to replace the current Criminal Code’s Article 86 to include the following: “ARTICLE 86: Abortion is not considered a crime when it is performed in agreement with the woman or gestating person until week fourteen (14), including the 14th week, of the gestating process. An abortion performed in agreement with the woman will not be punishable in any case: a) if the pregnancy were to be the product of rape, with the sole requirement and sworn declaration of the woman of gestating person before the participating health professional; b) if the woman’s or gestating person’s life or health were in danger, considered as a human right; c) if there was a diagnosis that considered the fetus’ extra-uterine life as inviable” (Diputados Argentina, 2018). 23

It also stipulated that for those who succeeded in undergoing or performing an abortion beyond week 14 and were outside of the previously outlined understandings would be subjected to imprisonment of three months to one year (Article 19 and Article 16) –lower than the one to four years of imprisonment for women who unlawfully undergo abortion under the current law. Those who caused a woman’s abortion without her agreement were to be subjected to three to ten years of prison time (Article 16), mirroring the current penal code.

Furthermore, it pursued to establish the duty for health facilities’ authorities to immediately guarantee the performance of voluntary terminations within the proposed understandings. It also stipulated the outlawing of any kind of imposition or requirement, such as a previously issued judicial authorization –this also applies to cases of rape under the existing Criminal Code11–, that could derive in obstacles for the woman or gestating person to access an abortion in an agile manner (Article 9). Additionally, it proposed the punishment of three months to one year of prison time, and the disqualification of performing their profession for double the time of the prison sentence, for health authorities and professionals who denied, blocked or delayed a legal abortion (Article 17). In this manner, the project outlined a framework that protected women from discrimination in the availability of the procedure, ensuring that they would be able to access it upon request and without delay.

At the same time, it considered all healthcare facilities, regardless of their legal concept or public or private nature, as responsible of incorporating full coverage of the expenses incurred through a voluntary termination of pregnancy conducted via any of the forms recommended by the World Health Organization (WHO) –these expenses were to include diagnosis, medicine and support therapy (Article 12). In this way, the project aimed at instituting the voluntary termination of pregnancy as a right free of cost for women or gestating persons, which would have placed them

11 Provision 27 of the 2012 F,. A. L s/self-satisfied measure clarified that there is no requirement for a rape victim to produce a judicial authorization in order to access an abortion due to the fact that the Criminal Code’s Article 86, point 2, does not demand a judicial report or any type of proof for a child, teenager or woman to access the voluntary termination of a pregnancy as the result of a rape. For these cases, it suffices for the victim, or representative, to declare to the health professional performing the procedure that the causal is rape –this prevents the delayed access to necessary care (Corte Suprema de la Justicia de la Nación, 2012). 24 in a much more advantageous position than the one provided by the current Protocol, including those who are under the current scope of lawful terminations.

As context, it should be pointed out that that currently only two laboratories (Laboratorios Beta and Laboratorio Domínguez) trade misoprostol12 in Argentina, which derives in high prices for a safe abortion: a box of Oxaprost, as commercially named by Beta, costs $4,500 Argentinean pesos (roughly 62€13); for its part, a box of MISOP200 from Domínguez is sold for $2,895.50 pesos (40€) (Política Argentina, 2018). For comparison, the minimum wage in Argentina in October 2019 was $16,875 (231€) (iProfesional, 2020).

The proposal also integrated the duty of a health professionals who were to intervene in a direct manner in the abortion procedure to guarantee access and to not deny the procedure, unless the healthcare worker had previously registered as a conscientious objector –this proposal, like the current legal abortion protocol in Argentina, respects an individual’s right to exercise their private conscious. However, this project explicitly states the prohibition of institutional conscious objection in its Article 11: “institutional conscious objection and/or of ideology is prohibited” (Diputados Argentina, 2018). Such a prohibition is not stipulated in the current Criminal Code, although it is implicitly suggested in the existing Protocol.

In sum, the proposed bill sought to change the legal framework and establish a much more free and safer environment in two main ways: decriminalization of abortion, which followed from the expansion and protection of rights of gestating persons, and the legalization of it by establishing the provision of secure and free access to the procedure.

It must be noted that the proposed project does not stipulate a “reflection period” that is often included in voluntary pregnancy termination laws across the world. For example, a series of European countries require women who wish to terminate a pregnancy to wait a number of days

12 Misoprostol is a drug that is commonly used as treatment against stomach ulcers or other stomach issues, and which can also be used in order to provoke an abortion, either by itself or in combination with another component. Misoprostol is the most usual type of medical abortion and causes severe contractions in the uterus, which derives in the expulsion of the embryo through the vagina. It is often combined with another drug such as mifepristone, which prevents the embryo from continuing its implantation in the uterus wall and rises the effectiveness of the misoprostol. 13 Exchange rate: May 11, 2020. 25 between the date of request and the date of the abortion procedure: in Belgium, women must receive counseling from a counseling body and undergo a six-day reflection period from the date of the first approach with this body before they can access the procedure; in the Netherlands, this period consists of five days; in Germany14, this period is shortened to three days. Some countries where there is no waiting period include Austria, Norway, Denmark and Switzerland15 (Fiala, 2005), and France abolished such a requirement in 2015 through the reform of the 1975 Veil Law (Berer, 2017).

2.2.3.1 Reaction and Discussion of Proposal

It is deemed adequate now to discuss the reactions surrounding the proposal and the social debate leading up to its discussion in the Senate, or Upper Chamber, in the summer of 2018. It can be said that the approval of the Lower Chamber gave this project a leverage that previous strives for decriminalization had not encountered; nevertheless, the Senate still had to review the proposal and approve it in order for it to be fully integrated in the law frame. The months preceding the vote of the Senate saw a strong variety of public policy actors take a public stance on the matter; public figures, politicians, bureaucrats, media outlets, organizations, institutions and civil society were divided in two sides opposing each other, and it was difficult to find a politician or public figure who did not have an opinion on the matter (Pardo, 2018).

Social mobilizations enjoyed exceedingly high turnouts; nearly 1 million attendants from the progressive feminist movement Ni Una Menos (Not One Less) –a widespread social movement

14 In Germany, most women find it practically feasible to obtain an abortion, despite the fact that it technically remains criminalized through the German Criminal Code, which stipulates imprisonment for up to three years or the issuance of a fine to those who terminate a pregnancy –except for the causal of rape and health threat or if the women submits herself to a consultation before the 12th week of pregnancy and the procedure is performed by a doctor (Lauschke, 2020). However, up until March 2019 doctors and clinics were prohibited from publicly listing abortion procedures as part of their services –this measure was the vestige of a Nazi-era law that punished by fine or by up to two years of prison time those medical workers who “advertised” abortion. Now, doctors and hospitals are allowed to list abortions as part of their services, but they are not permitted to provide information regarding available methods or recommendations of what method to select (Lauschke, 2020). 15 Despite not requiring requestors to see a waiting period, Switzerland does require women to undergo a consultation before the procedure –in this consultation a doctor must counsel the requestor on the possible physical and psychological consequences of a termination and provide them with information regarding the possibility of continuing with the pregnancy and giving away the baby for adoption afterwards. Furthermore, the requestor must sign a formal abortion request form in which she states that she is in distress due to her pregnancy before she can access an abortion (Islas, 2019). 26 with presence in a number of Latin American countries that seeks to bring societies’ and governments’ attention to the generalized gender violence in the region–, took to the streets in Buenos Aires and flooded public spaces with green handkerchiefs signaling their support for the law. The opposition took the color blue as their banner and benefited from vocal support from the Catholic Church (Pardo, 2018). Despite the Church’s pressure to influence public opinion and the fact that over 60% of Argentina’s population still professes Catholicism (CONICET, 2019), public polls showed that the large majority of Argentineans, from 60% to 70%, supported the full passing of the law (Pardo, 2018). However, the Senate rejected the bill and barred it from being discussed the following year16.

The particular positions within the Senate were, of course, evidently polarized; the vice-President of the Upper Chamber of Congress, Gabriela Michietti17, led the faction that favored the “no” (de Carlos, 2018) and that claimed that women’s abortion rights were in direct confrontation with the rights of the unborn child, while those who favored the “yes” made a general case that focused on the affirmation of the perceived fact that women who feel the need to terminate their pregnancies will do so regardless of the legal framework on the matter and the life-threatening conditions of clandestine clinics or self-induced abortions (Barragán and Molina, 2018).

2.3 Uruguay’s Legal Framework on Voluntary Pregnancy Termination: from Criminalization to Decriminalization and Legalization

2.3.1 Law 9.763, Civil Code on Persons and those who are Subject of Constitutional Rights

16 The constitutional framework in Argentina declares that a legislative proposal can be presented by the Lower Chamber, the Senate, the nation’s President and, as more recently stipulated, by civic society. If a bill is introduced to the Lower Chamber, this institutions becomes the centre of origin of the project and the Senate is regarded as the “reviewing chamber” (Congreso de la Nacion, n.d.) and vice-versa; if the reviewing body passes a bill approved by the chamber of origin then the project is regarded as approved, but if the reviewer rejects a proposal that had undergone approval by the original chamber then the bill is blocked and cannot be discussed again in the following year’s sessions (Congreso de la Nacion, n.d.). 17 Member of the center-right party Propuesta Republicana (Republican Proposal). 27

Uruguay’s 1889 Criminal Code18 criminalized abortion in all cases except for when a woman was subjected to an abortion without her consent or when a health professional deemed it necessary to safeguard the life of the gestating person (Sección V, Código Penal de la República Oriental de Uruguay, 1889). Under this Code and its Article 341, women who were to cause their own abortion or be in agreement with it were to be prosecuted with imprisonment of 15 to 18 months, unless she acted “in the interest of protecting her honor”, in which case the sentence would be lowered to nine to twelve months of prison time. For their part, those who assisted the woman with the procedure were to be penalized with imprisonment of two to four years, as established by Article 342.

However, for a short period of time between 1934 and 1938, consensual abortion was decriminalized when the Criminal Code was reformed by a newer one written by José Irureta Goyena, a highly regarded criminal lawyer with a long trajectory in academia, who in this way established the Latin American nation as a spearhead on the matter of pregnancy termination in the region. Nevertheless, in 1935 a decree issued by the Ministry of Health prohibited all clinics and hospitals part of the public health system from providing access to an abortion. By 1937 the Parliament had been overtaken by pressures from social and political factions affiliated to Catholicism and –with support from the executive power, which was headed by Gabriel Terra19– decreed a new regulation named Law 9.763 in December of that year, reforming the Criminal Code and returning abortion to a criminalized status (Luzzi, 2012).

The Law 9.763 modified the Criminal Code by declaring abortion as a punishable act and establishing the following penalties:

- “ARTICLE 325: Abortion with the agreement of the woman. The woman who would cause her own abortion or be in agreement with it will be punished with prison time from three to nine months.

18 Uruguay’s 1889 Criminal Code was the country’s first code of this kind. It was approved during the presidency of Máximo Tajes and it was modelled after its Italian counterpart, and inspired by the Chilean and Spanish codes (Aller, n.d.). 19 Gabriel Terra is often regarded as a dictator or authoritarian due to his conduction of a coup d’état in which he derogated Uruguay’s 1918 Constitution and dissolved the legislative power in 1933 after having been elected as president in 1930. He remained in power until 1938, when he handed the presidency to Alfredo Baldomir, his brother in law. 28

- ARTICLE 325 (BIS): Abortion with the collaboration of a third party and with the woman’s agreement. Whoever collaborates in the abortion of a woman who is in agreement and serves as a principal or secondary actor will be punished with six to twenty-four months of prison time. - ARTICLE 325 (Ter.): Abortion without the agreement of the woman. Whoever causes the abortion of a woman without her consent will be punished with two to eight years of prison time” (Ley 9.763, 1938).

Article 328 stipulated “attenuating and exempting causes” and furnished the possibility of a reduction of prison time –by one third to a half– or even the exemption of punishment in the following cases:

- Reduction of prison time: o “If the crime was committed to save one’s own honor, that of the wife or a close relative. o If the abortion was conducted without the woman’s agreement in order to eliminate the result of a rape, due to serious health issues or due to financial distress” (Ley 9.763, 1938). - Exemption of penalty: o “Possible if the Judge ruled so in case of a consensual abortion to save one’s own honor. The cause of honor would not shield the member of the family who was the author of the pregnancy. o Consensual abortion in the case of rape, serious health issues or due to financial hardships” (Ley 9.763, 1938).

These possibilities of “attenuation and exemption of penalty to which the previously outlined items refer to will only apply in those cases in which the abortion was conducted by a doctor within the first three months of conception” (Ley 9.763, art. 328, 1938). These three-month term requirement would not apply to the cases of serious health threat. Some important remarks include that the procedure would be required to be performed by a doctor and that the Criminal

Code does not mention the demand for a rape victim to produce a judicial report in order to access an abortion, it is therefore inferred that under this framework such a report is not required.

It must be noted that the current Criminal Code of Uruguay, last updated in February 2014, still integrates Law 9.763 in its body20 despite abortion having been decriminalized in 2012 (Código Penal de la Reública Oriental de Uruguay, 2014).

Uruguay’s Civil Code, for its part, holds no stipulation as to when life is considered to begin:

- “ARTICLE 21: All individuals of the human species are considered persons” (Código Civil de la República Oriental de Uruguay N° 16603, 1994).

The Code offers no provision regarding exactly when this recognition of individuals and persons begins, unlike its Argentinean counterpart which explicitly considers conception as the “beginning of life” in its Article 19. Additionally, the Uruguayan Constitution and the Argentinean Constitution differ in the fact that the Argentinean document explicitly orders the “protection of a child” since pregnancy in Article 75, while the Uruguayan equivalent considers only the following:

- “ARTICLE 7: the inhabitants of the Republic have the right to be protected in their enjoyment of life, honor, liberty, security, labor and ownership (…21)” (Constitución de la República Oriental de Uruguay, 2004).

2.3.2 Ordinance 369/04 and the 2012 Voluntary Termination of Pregnancy Law/Abortion Law (Law N° 18987)

Uruguay had already taken a step forward in the decriminalization of voluntary termination of pregnancy in 2008 with a law project titled Sexual and Reproductive Health Law, which proposed the depenalization of abortion within the first 12 weeks of pregnancy and had been successfully approved by the Uruguayan Congress22. However, then-President Tabaré Vázquez (terms: 2005-

20 Chapter 14. 21 “Nobody can be deprived of these rights unless there is an accordance with the laws established due to the general interest” (Constitución de la República Oriental de Uruguay, 2004). 22 In Uruguay, both the Upper House and the Lower House are able to propose law projects. If the House of origin approves the project then it moves onto the other House, which can reform it or discard it. If both Houses approve the final proposal then it is transferred to the Executive power, which can officially publish it or return to the Congress with observations (Constitución de la República Oriental de Uruguay, 2004). 30

2010 and 2015-2020) vetoed the law despite being part of the left-leaning political party that actually supported the project, Frente Amplio (Ample Front) (El País, 2008). Ex-President José Mujica, who would sign the law that effectively decriminalized abortion in the country four years after Vázquez’ ban, also subscribes to this party.

Nevertheless, an ordinance issued in 2004 took the first steps towards the protection of women who sought to terminate a pregnancy. Ordinance 369/04 acknowledged Uruguay as one of the countries with the highest maternal mortality rates deriving from complications from abortion in conditions of risk in the region at that moment. The ordinance aimed at adopting measures that would prevent or reduce the damage resulting from unsafe abortions through the active counseling from obstetricians to patients without regard towards the motivating cause (Ordenanza 369/04, 2004)23.

The issuance of the ordinance evidenced that Uruguay was already on track towards decriminalization and in October 2012, the Uruguayan Upper Chamber voted for a new bill regarding the matter. With 17 votes in favor and 14 against and no vetoing from then-President José Mujica, the Republic of Uruguay joined Cuba, Guyana, Puerto Rico and Mexico City in the list of Latin American locations where gestating persons could access the right to voluntary termination of pregnancy within a set term (Peregil, 2012). Law N° 18987: Voluntary Termination of Pregnancy Law/Abortion Law outlines the following general principle:

- “Article 1: The State guarantees the right to a conscious and responsible procreation, recognizes the social value of maternity, guards human life and promotes the full exercise of sexual and reproductive rights of the population (…)” (Ley N° 18987, 2012).

23 The ordinance established the right for gestating persons to access a medical consultation where they could receive information about the risks of unsafe abortions and undergo a number of health analysis in order to assess if there were any risk factors that could increase the possibility of complications –such health screens included HIV and Hepatitis B tests, an ecosonogram in order to diagnose the period of gestation, a diagnosis of whether the patient has uterine malformations and others. In case the gestating person wished to continue with the procedure, they would be provided with antibiotics 24 hours before the expected time of the abortion and for a period of 10 days after the process. Furthermore, it also stipulated the right to a post-abortion consultation where the patient could access preventive care to avoid infections and hemorrhages, along with emotional and psychological support for at least three months after the procedure (Ordenanza 369/04, 2004). 31

Like the Argentinean 2018 proposal, this law establishes the State as a guarantor of citizens’ rights, specifically those related to reproduction. In its Article 2, the law establishes the decriminalization of the voluntary termination of pregnancy and declares that Articles 325 and 325 BIS of the Uruguayan Criminal Code would no longer be applicable in those cases where the woman complied with certain requirements, and as long as the procedure would be performed within the first 12 weeks of pregnancy. The mentioned requirements are enlisted in Article 3 as follows:

- Medical consultation: The woman must undergo an initial medical consultation in order to make her motivations known to the healthcare professional. The professional will then assemble an interdisciplinary board of at least three professionals –a gynecologist, a mental health professional, and a social issues expert– who will inform the requestor of the risks and possible consequences of undergoing an abortion, as well as the existing social and financial programs available for support and the possibility of giving the baby up for adoption. - 5-day reflection period: From the date of the appointment with the board, the woman will undertake a reflection period of at least five days, after which she will be able to corroborate her wish to terminate the pregnancy and undergo the procedure. This will then be recorder in her medical history (Ley N° 18987, 2012).

Beyond the previous considerations regarding the 12-week pregnancy term limit and other requirements, a termination will only be allowed to take place if the pregnancy represents a health threat to the woman24 or if the fetus is deemed as unable to sustain extra-uterine life, with no term limit. On the other hand, if the pregnancy is the result of rape, the requestor must produce a judicial statement within the first 14 weeks of pregnancy in order to access the procedure (Article 6) (Ley N° 18987, 2012) –such a requirement, as aforementioned, is not stipulated in the Criminal Code.

24 In all cases the consent of the woman is required for a doctor to perform the procedure, except when the causal is health threat and the woman is not able to provide her consent due to the severity of her condition (Ley N° 18987, 2012). 32

As stated in Article 9, pregnancy termination in Uruguay is not considered a tradable act, which exempts the procedure from payment25. Furthermore, Article 10 establishes all medical institutions part of the National Integrated Health System as responsible for ensuring that all requestors have access to a termination within the allowed terms. Article 11 indicates the right for medical personnel to declare themselves as conscientious objector26, which they must formally do through the authorities of the institution in which they practice before they can exercise the objection (Ley N° 18987, 2012).

Article 13 establishes the requirement that in order to be able to access termination, the requestor must be either a Uruguayan citizen or must have resided in the country for at least a year (Ley N° 18987, 2012).

2.3.2.1 Critique of Uruguay’s Voluntary Termination of Pregnancy Law/Abortion Law (Law N° 18987)

Despite having been widely celebrated as an important step in the fight for women’s equality and reproductive rights in Latin America, it must be noted that Law N° 18987 has faced widespread criticism from some feminist sectors of Uruguayan society (Peregil, 2012) and former government members (Pechney, Abracinskas, et. al, 2016). This has been mainly because of two reasons: the requirement for requestors to undergo a pre-abortion consultation and explain the reason for their decision, and the requirement to then follow a five-day “reflection period”, which must be trailed by a second consultation so that the requestor can re-affirm their intention and finally obtain the legal permission to terminate their pregnancy. Some feminist organizations complain that such conditions can delay a woman’s access to an abortion, which can even result in the requestor’s failure to adhere to the allowed 12-week term.

25 Before the passing of the Voluntary Termination of Pregnancy Law in 2012, the necessary dose of misoprostol to induce an abortion –four pills of 200 mg each– went for about $5,000 Uruguayan pesos (around €197 –exchange rate on May 17, 2012) (de los Santos, 2012). For reference, the minimum monthly wage in Uruguay in 2012 was $7,200 pesos (€283) (América Económica, 2011). 26 Institutional objectors of conscious are allowed to exercise as such only if they had registered as objectors prior to the publishing of the Voluntary Termination of Pregnancy Law, according Article 10 and registered objectors are not allowed to deny service in case the gestating person’s life or health are in danger (Ley N° 18987, 2012). 33

Furthermore, there are those who consider that the demand to attend pre-abortion counseling consultations puts women in a subordinated position vis-à-vis the government and the healthcare system, and can be read as a suggestion that women are not capable of undertaking ethical or adequate decision-making related to their own bodies without the influence or counseling of a second party –in this case, the second party being the State (Pechney, Abracinskas, et. al, 2016).

Other points of tension include: the requirement for rape victims to file a police report in order to access a legal abortion within the first 14 weeks of pregnancy, which has also been perceived as a possible obstacle regarding time frames27; the need for foreign women to prove that they have resided in the country for at least a year in order to access an abortion, which puts them in a position of discrimination; the omission to reform the Criminal Code to de juro legalize abortion within the country’s criminal law; and the fact that the right to objection of conscious can lead to entire municipalities holding doctors that have registered as objectors, limiting access to voluntary termination for those who cannot undertake travel to other locations –such a case was observed in the city of Salto, where all gynecologists registered as objectors in 2015 (Pechney, Abracinskas, et. al, 2016).

2.4 Contrasting Summary of Argentinean and Uruguayan Laws on Pregnancy Termination

The table below (Table 1) illustrates a side-by-side comparison between pregnancy termination laws in Argentina and Uruguay in present day. While in Uruguay abortion has been decriminalized and legalized regardless of cause up until week 12 of the pregnancy term and week 14 in cases of rape, and can be accessed free of cost, the requirement for rape victims to produce a judicial report and for all requestors to undergo a pre-abortion counseling consultation and a five-day reflection period before accessing an abortion has caused criticism from feminist organizations in the country due to the possible delay such measures can cause and the subordination of women to state-imposed counseling.

27 Another common critique regarding the requirement to produce a police report in countries where this is necessary to access an abortion is that the rape victim is put in a re-victimizing position in which she must re-live a highly traumatic episode in order to be allowed to decide over her own body. 34

For its part, Argentina has only decriminalized abortion for the causal of rape and life or health threat. However, it does not require rape victims to file a police report to access an abortion or undergo pre-abortion counseling.

Table 1: Contrast of present-day laws regarding pregnancy termination in Argentina and Uruguay28

Provision Argentina – present day Uruguay - present day Rights of requestors Right to voluntary pregnancy termination upon request and No - 1 to 4 years of prison Yes, within 12 weeks regardless of cause

Right to abortion in case of life threat Yes, no term limit Yes, no term limit

Right to abortion in case of health Yes, no term limit Yes, no term limit threat Right to abortion in case of fetus No Yes, no term limit unviability Right to abortion in case of rape Yes, no term limit Yes, within 14 weeks Right to abortion in case of financial No Yes, within 12 weeks hardships Right to a free abortion No Yes Requirements for requestors Requirement to produce a judicial No Yes report in case of rape Yes, reflection period of at least 5 “Reflection period” required No days Requirement to undergo counseling No Yes before accessing abortion Rights of healthcare professionals Yes, if the institution was registered Right to institutional conscious No as a CO prior to the validity of Law N° objection 18987

Right to personal conscious objection Yes Yes

Elaboration: Author

28 All tables are the author’s own work. 35

The following table illustrates the main differences between the 2018 Voluntary Termination of Pregnancy Law Project in Argentina and the current framework in Uruguay. When compared, it could be inferred that the Argentinean proposal is more beneficial to requestors due to the following variances: longer permissible period to undergo an abortion; lack of the requirement to present a judicial report and no term limit in cases of rape; no demand to engage in a “reflection period” after the initial abortion request; and no requirement to submit to counseling before accessing the procedure. Main similarities include the right to free abortion and the legalization of abortion regardless of cause –although, as stated, the Argentinean proposal is more lenient.

Table 2: Contrast between the Argentinean 2018 project to legalize the voluntary termination of pregnancy and present-day law in Uruguay

Provision Argentina - 2018 Bill Uruguay – present day Rights of requestors

Right to voluntary pregnancy termination Yes, within 14 weeks Yes, within 12 weeks upon request and regardless of cause

Right to abortion in case of life threat Yes, no term limit Yes, no term limit

Right to abortion in case of health threat Yes, no term limit Yes, no term limit

Right to abortion in case of fetus unviability Yes, no term limit Yes, no term limit

Right to abortion in case of rape Yes, no term limit Yes, within 14 weeks

Right to abortion in case of financial Yes, within 14 weeks Yes, within 12 weeks hardships

Right to a free abortion Yes Yes

Requirements for requestors Requirement to produce a judicial report in No Yes case of rape

“Reflection period” required No Yes, reflection period of 5 days

Requirement to undergo counseling before No Yes accessing abortion

Rights of healthcare professionals Yes, if the institution was registered as Right to institutional conscious objection No a CO prior to the validity of Law N° 18987

Right to personal conscious objection Yes Yes

Elaboration: Author

Table 3 contrasts the current legal environment regarding voluntary abortion in Argentina and the changes the 2018 proposal sought to ensure. The main difference stems from the bill’s goal to effectively legalize voluntary pregnancy termination regardless of cause within the first 14 weeks of pregnancy.

Table 3: Contrast between the Argentinean 2018 project to legalize the voluntary termination of pregnancy and present-day law in Argentina

Provision Argentina – present day Argentina – 2018 Bill Rights of requestors

Right to voluntary pregnancy termination No Yes, within 14 weeks upon request and regardless of cause

Right to abortion in case of life threat Yes, no term limit Yes, no term limit

Right to abortion in case of health threat Yes, no term limit Yes, no term limit

Right to abortion in case of fetus No Yes, no term limit unviability

Right to abortion in case of rape Yes, no term limit Yes, no term limit

Right to abortion in case of financial No Yes, within 14 weeks hardships

Right to a free abortion No Yes

Requirements for requestors

Requirement to produce a judicial report No No in case of rape

“Reflection period” required No No

Requirement to undergo counseling No No before accessing abortion

Rights of healthcare professionals

Right to institutional conscious objection No No

Right to personal conscious objection Yes Yes

Elaboration: Author

Table 4 draws a comparison between the current abortion laws in Argentina and the legislation regulating pregnancy termination in Uruguay before its legalization in 2012. The most striking differences lie in the shorter prison time that used to be imposed in Uruguay in cases of unlawful terminations, along with the possibility of obtaining an abortion in cases of financial distress –this is not currently possible in neighboring Argentina.

However, the Argentinean regulation has no term requirement in cases of rape, while Uruguay used to impose a 12-week term limit for the same causal. Furthermore, Uruguayan institutions used to be able to declare themselves as conscious objectors, a possibility that has been inherited in the post-2012 framework as those institutions are allowed to keep this status if they registered as objectors before the validity of the current law –Argentina does not allow institutional objection in its present-day regulation, which facilitates requestors’ possibilities of obtaining an abortion in lawful cases.

Table 4: Contrast between present-day legislation in Argentina and Uruguayan legislation prior to the legalization of voluntary pregnancy termination in 2012

Provision Argentina – present day Uruguay before 2012

Rights of requestors

Right to voluntary pregnancy termination upon request and No - 1 to 4 years of prison No - 3 to 9 months of prison regardless of cause

Right to abortion in case of life Yes, no term limit Yes, no term limit threat

Right to abortion in case of health Yes, no term limit Yes, no term limit threat

Right to abortion in case of fetus No No unviability

Right to abortion in case of rape Yes, no term limit Yes, within 12 weeks

Right to abortion in case of financial No Yes, within 12 weeks hardships

Right to a free abortion No No Requirements for requestors

Requirement to produce a judicial No No29 report in case of rape

“Reflection period” required No No

Requirement to undergo counseling No No before accessing abortion

Requirements for requestors

Right to institutional conscious No Yes objection

Right to personal conscious objection Yes Yes

Elaboration: Author

2.5 Literature Review of Previous Research Regarding the Relationship between the Catholic Church, Catholic Religion and the Argentinean and Uruguayan States

2.5.1 Argentina and the Role of the Catholic Church and Religion in State Matters

Despite Latin America showing decreasing numbers of religious adepts throughout the last decade, the region’s diverse societies remain one of the most committed to religious beliefs in the world, along with the Middle East, West and East Africa and South East Asia (Pew Research

29 This is inferred by the regulation’s lack of mention regarding this requirement. 39

Center, 2018). Among the most religious countries in the area, one can find the Argentine Republic. According to the Second National Poll on Creed and Religious Attitudes in Argentina (2019), 80% of Argentineans self-identify as religious 30(CONICET, 2019).

Religion in Argentina has a strong influence in public policy matters, and this is strengthened by the active meddling of the Catholic Church in these processes. One of the most knowledgeable researches on this topic is Argentinean academic Juan Cruz Esquivel, who holds a PhD in Sociology from the University of São Paulo and serves as professor in the Faculty of Social Sciences at the University of Buenos Aires and is part of Argentina’s National Scientific and Technical Research Council. He is a current member of the Sociology of Religion Research Committee of the International Sociological Association. His lines of research include the relationship between the State and the church, laicicity, and the presence of religion in the public policy process. He has authored dozens of books and published more than 50 articles in international research journals (Alonso, 2020).

One of his most recently published articles on the influence that the Catholic religion and the Church have had on public policy in Argentina is his 2016 text Religious Influence on Parliamentary Decisions on Sexual and Reproductive Rights, which he wrote for the journal Latin American Perspectives and was translated by Carlos Pérez.

Esquivel begins his text by stating that relations between the State and the Church take place at local and national levels, and that they have direct influence in Argentina’s public policy process. With this article, Esquivel hopes to analyze the impact of religious institutions and of legislators’ religious beliefs on the crafting and advancement of sexual and reproductive rights projects in the Argentinean Congress. For this objective, he poses two main questions: “Is the state laic, faith- based, or associated with an official religion? Does it give equal treatment to all religions (…)?” (Esquivel, p.134, 2016).

He then pans some conceptual precisions regarding lacicism. He describes the laic State as one that guarantees freedom of religion, maintains a neutral position on cult matters, and does not derive its legitimacy from religious authorities. He specifies that this process is particular to each

30 With 62.9% identifying as Catholics (CONICET, 2019). 40 country’s “cultural matrix” and “historical configuration”, and may result in different meanings of what it means for a State of be laic (Esquivel, p. 134, 2016). Furthermore, he makes the important claim that the characterizing of this concept must not stay within the legal level, but must include cultural and socio-historical approaches.

Esquivel proposes to describe the Argentinean type of laicicity as a “subsidiary laicism” –he describes this model as one in “which the State, parallel to its conquest of autonomous spaces and significant recognition of various civil rights, confronts a religious institution that intervenes in the implementation of its policies” (Esquivel, p. 141, 2016). He then enlists a series of regulations on sexual and reproductive rights that have been implemented in the country in recent years, for example: the 2002 law that ensured the free distribution of contraceptives; the 2010 Civil Code modification that allowed same-sex marriage; and the 2012 law on sexual identity (Esquivel, 2006). These are all regulations that have been enacted in Argentina and that are not present in most Latin American countries, especially when it comes to the recognition of same- sex marriage.

Despite what would seem as a generally liberal sexual environment in Argentina, Esquivel questions the extent to which these policies ensure a political culture rid of religious legitimacy and if one can really claim that they amount to laicization. He states that these measures are the reflection of an increasingly democratic State that responds to citizens’ demands rather than the result of an increasingly laic political culture. Furthermore, he makes the point that the translation of these laws into public policies has been subject of setbacks due to local authorities and bureaucrats whose “appointment often depends on the consent of religious authorities”31 (Esquivel, p.136, 2016) and who tend to be much more influenced by religion than national legislators, who for their part tend to engage more with civil society’s demands (Esquivel, 2016). In this way, Esquivel illustrates a clear example of a principal-agent problem in which implementers of public policies follow their own interest and produce a gap between the actual law and its implementation.

31 As an example of religious underpinnings in local Argentinean elections, Esquivel refers to Daniel Scioli’s 2011 political campaign to govern the Buenos Aires province in which a TV ad depicting the candidate praying in a church with the slogan “I believe in you” was distributed (Esquivel, 2016). His campaign was successful. 41

Esquivel then begins a section of his article titled “Church-State Relations in Argentina” (Esquivel, p.136, 2016). which he begins by making the claim that the Catholic Church has played a crucial role in the building of Argentinean society’s identity and has been one of the main sources of legitimacy for the political process. According to him, this relationship between the political and religion began with Argentina’s evangelization through the Christian model and the Royal Patronage that was implemented at its onset, and this configuration did not end after independence. In fact, Catholicism became a unifying force in the search for cultural cohesion during the emergence of the Argentinean Nation-State in the XIX century as the population demanded to construct an identity of their own, a sense of belonging (Esquivel, 2016). This is similar to the experience lived in Mexico, where Miguel Hidalgo, a priest who is officially attributed as having started the independence movement of 1810, is regarded as one of the most iconic national symbols –in fact, one of the most famous depictions of Hidalgo show him holding an image of Mexico’s Virgen de Guadalupe (Guadalupe Virgin).

Furthermore, the State profited from the privileged position of the Catholic religion amongst society to derive financial, symbolic and cultural support to ensure privilege. Esquivel cites some examples to illustrate the support given by the government to the Church, such as subsidies for religious schools, the issuance of diplomatic passports to archbishops and bishops and the usage of Catholic imagery in State institutions –and despite the Constitution not recognizing Catholicism as the State’s official religion, it does establish official support for the Catholic Church. As a result, politicians did not enforce an official separation between the State and the Church, recognized the Church as an important actor in the political space, and integrated discourses influenced by religion to certain policies (Esquivel, 2016).

In Argentina, when the XX century came with its promise of progress, the Catholic Church took a confrontational stand to protect its hegemony, sought to guarantee its place in the public sphere, and Catholicize society further. This was facilitated by the strong stance of the Catholic religion in the society, the increasing number of Catholic schools at the beginning of the XX century –which had a role to play in the installation of the educational system–, and the usage of the State apparatus to expand activities in the country (Esquivel, 2016). Political elites, for their part, have regarded Catholicism as a manner in which they can legitimize their position –this has been

42 particularly the case since the 1930 coup–, promote the interference of the Catholic Church in legislative debates and public policy management, and recognize the Church as the “bestower” of values in the country (Esquivel, p.138, 2016).

Esquivel then delineates the link between religious belief and the Argentinean Congress. He does this first by referencing a research project done by the National Scientific and Technical Research Council32 in which links between Congress members and religious institutions were investigated. Members were asked about their stance on a number of civil rights such as artificial insemination, euthanasia, adoption by homosexual couples and abortion –the more liberal opinions, as remarked by the author, came from women and young members from Buenos Aires and the center of the country. Despite a general support for the expansion of civil rights, legislators do perceive religion as having influence in decision making by the Congress; only 3% claimed that the religious belief of their colleagues had no influence on their votes, while 27% responded that it did. Moreover, researchers found that members’ positions were indeed impacted by their religious values, unless they faced strong lobbying or pressure from authorities –some of the arguments cited for this included the following: personal convictions are not subject of negotiations; no one can be separated from their religious upbringing; religious beliefs are part of a legislator’s conscience; and the religious faith of the population should be represented (Esquivel, 2016). Additionally, 75% of those who answered to the poll admitted to have met with religious leaders within the past year mainly to consult them on questions regarding sexual education and other parts of the public agenda that could be of interest of the Church, and three out of four said that the opinion of the Church influenced their votes on projects focused on sexuality (Esquivel, 2016). Lastly, most members made a reference to God when taking their official oaths (Esquivel, 2016).

To conclude his article, Esquivel states that the expansion of civil rights in Argentina is not necessarily linked to significant secularism and that many of these rights have found difficulties in their implementation at local levels, in part because of some authorities’ and bureaucrats’ religious beliefs and because of the country’s religious structures, which act as intermediaries. He

32 This research was directed by Juan Esquivel himself. 43 turns again to the concept of “subsidiary laicism”, in which the State is present to guarantee the free initiative of individuals and organizations, often financially supported by the state and included in the execution of policies, and is expected to act only when these are not deriving in the common good. In this model, legislators pay “lip service”, as put by Esquivel, to laicisim, but do so in a context where policies hold religious undertones and where the State has not claimed full autonomy from the Catholic Church (Esquivel, p. 142, 2016).

Esquivel’s text is very well structured and provides an interesting conceptual framework to categorize the Argentinean experience when it comes to laicisim. He also strictly remarks that there cannot be a universal interpretation of what a laic State should look like as these configurations depend largely on historical contexts, which is essential when approaching public policy studies in a particular country. He also provides important insights into the perceptions and the reasoning of Congress members in Argentina in relation to religion and the Catholic Church. He also explains very clearly and coherently the mutually-enforcing relationship between the State and the Church and gives some historical background, which may serve as guidance when studying and comparing the link between religion and government in other Latin American countries.

However, Esquivel’s text is merely 11 pages long and this limited him from supplying the reader with a more extensive explanation of the historical events that have derived in such a strong link between the two spaces, especially during the military regime in the 1970s. Furthermore, the article also lacks a deeper reading into how this relationship and the meddling of religious beliefs and of the Catholic Church in legislative decision-making and public policy implementation has affected female Argentinean population. The article focuses on sexual and reproductive rights, abortion and same-sex marriage are mentioned, but it does so mainly through the objective of understanding how these are influenced by religion and does not provide a deeper appreciation of how this impacts levels of reproductive equality and health for women –in particular, for women who seek to get an abortion outside of the lawful spectrum.

2.5.2 Uruguay and the Laic State

Uruguay is commonly regarded as one of the most liberal and progressive countries in the Latin American region. For example, in 2013 Uruguay became the first country in the world to legalize the recreational use of cannabis (CNN, 2019), just a year after joining the small group of Latin American countries that have legalized abortion regardless of cause. It is often stated that laicicity and secularization have become an integral part of the Uruguayan identity, and there is a considerable number of research articles and books that center on identifying how and why the link between the Catholic religion and its Church and the Uruguayan government has historically not been as prominent as that of other Latin American countries33, despite sharing a vast number of similarities –a background of colonization, a considerable presence of Catholic religion amongst society, and others.

One of the researchers that have focused a large fragment of their work on studying, describing and analyzing the country’s tendency towards secularization is Uruguayan sociologist Néstor da Costa Velázquez, active member of the National Research System (SNI) as a Level 1 researcher. Da Costa holds a PhD in Sociology and Social Sciences and is currently serving as the Director of the Sociology and Religion Institute in the Catholic University of Uruguay. His lines of research concentrate on sociology of religion, secularization, laicicity, society, political science and religion, and he has published dozens of articles and books since the end of the 1990s (Universidad Católica de Uruguay, n.d.).

One of da Costa’s most cited articles is titled La laicicidad uruguaya (The Uruguayan Laicicity), which he published on the journal Archives de sciences sociales des religions (Archives of Social Sciences of Religions) in 2009. In this article, da Costa seeks to explore the features of Uruguayan laicicity by analyzing the path that derived in the effective separation between the Sate and the Catholic Church in the year 1919, the transfer of religion into the private space of society, and the religious-cultural characteristics that have reigned in the South American country.

33 As a 2017 report named "Religion in Latin America, a generalized change in a historically Catholic region” by the Pew Research Center informed, the Latin American countries with the highest percentage of Catholic adepts are the following: Paraguay (89 %), Mexico (81 %), Colombia (79 %), Ecuador (79 %) and Bolivia (77 %) (La Estrella, 2017). Some of these countries are often linked to religious motives that have become international points of reference, such as Mexico’s Virgen de Guadalupe. 45

Da Costa begins his article by outlining an important consideration: the concept of laicicity has a cultural and social purpose only in certain countries in the world, and there cannot be space for a universal understanding of it, but rather a contextualized reading framed by a society’s historical uniqueness. In this way, da Costa advocates for a situated understanding of what it means for a country to be secular, or not, and the differentiated implications that it can have in particular societies (da Costa, 2009). This remark, similar to Esquivel’s precision, is crucial to understand that every country that has developed a secular government model has done so through unique historical developments influenced by different events and actors and that, although some models and contexts or backgrounds may share similarities, no two are the same. The answers to when, how, why, what and who pushed this developments will undoubtedly vary society to society –and this may have an influence on the degree or model of laicicity.

Da Costa assesses that the brake between the Church and the Uruguayan State successfully materialized with the promulgation of the Constitution of 1919 –this happened after a long confrontation among different actors who sought to structure the new Uruguayan State to fit their interests. The author claims that it was the French who served as inspiration for Uruguayan elites at the end of the XIX century and beginning of the XX century, which was a period in which the Catholic Church was fighting to retain certain spaces that it held under its power and that nowadays belong to the State (da Costa, 2009).

Some of the first areas that were relinquished by the Church to the State and that were subject of dispute included the secularization of cemeteries in 1861 and what da Costa calls the “intellectual conflict” (da Costa, p. 8, 2009) that took place between 1865 and 1878 –this period was characterized by the opening of new intellectual centers for both Catholics and liberals and an open quarrel that was fought through the media. By 1885 public education had been secularized, the civil registry had been transferred from the Church’s administration to the government’s, cloisters had been stripped off their legal existence, and a new law that required couples to marry by the State before they could marry by the Church had gone into force (da Costa, 2009). Uruguayan political elites and their reactions to the Catholic Church clearly contrast the attitude of their Argentinean counterparts.

Da Costa’s article relates the organizational efforts that the Catholic Church undertook in order to confront what they had deemed an open attack by the government elites; they founded a series of institutions such as schools, unions and even a political party with the aim of expanding their influence and strengthening their position. However, by the beginning of the XX century the government had gained further traction and abolished the usage of references to religion, such as mentioning the name of God or referring to gospels, in the Congressmen’s oath and removed all crosses in all public hospitals (da Costa, 2009) –this particular move seems a bold one in a region where large parts of societies turn to religion as a way of obtaining solace during trying times, particularly illness and death. Through the enlisting of these events, da Costa provides summarized information on some of the forces that would later lead to the effective and de jure separation of the Church and the State in Uruguay.

At last, the 1919 Constitution cemented the legal secularization of the State through its still-valid Article 5 –“All religious cults are free in Uruguay. The State does not sustain any religion”–, and it impacted the way society approached the division between private and public. As an example, da Costa cites the manner in which holidays are officially referred to in Uruguay as a result of the effective secularization of the State in 1919: Christmas became “the Family Day”; Holy Week was re-named “Tourism Week”; the Three King’s Day transformed into “Children’s Day”; and Virgin’s Day came to be known as “Beach Day” due to its proximity with the start of the Uruguayan Summer in December (da Costa, 2009). Additionally, the names of more than 30 towns lost their reference to religious motives –“Santa Isabel” (Saint Isabel) became “Paso de los Toros” (Bulls’ Way), for example (da Costa, 2009). This highly contrasts common cultural and official customs in other Latin American countries; for example, in Argentina there are several provinces and municipalities whose names come from religious references, such as Santa Fe or Santa Cruz, and this practice is spread-out throughout many other Latin American countries. In Mexico, Christmas time is a period in which motives such as nativity images are deployed in public spaces and sponsored by the government.

In his article, da Costa remarks that in Uruguay the Catholic Church did not approach the level of influence that it had in other Latin American societies from the beginning. He asserts that the weakness of the Church in the country was characteristic of the manner in which colonial

47 institutions were initially imposed; the Uruguayan territory was not as quickly occupied as other areas in the region because it did not host particularly coveted resources and its inhabitants did not display the same level of development as other indigenous communities in the continent. Therefore, major colonial institutions, such as the Catholic Church, did not settle so firmly, which resulted in the Church not enjoying the same strength and level of domination that it did, and still does, in other Latin American countries (da Costa, 2009). However, the author clarifies that this is not to say that the confrontation between the Catholic Church and liberal sectors was a feeble row; this opposition indeed led to such strong clashes that it gave way to anti-clerical sentiments that, to this day, are still present in some parts of society.

Da Costa indicates that the novel Uruguayan State pursued the construction of a “unique National being” (da Costa, p. 18, 2009) free of particularities, such as religion or other cultural differences, which were expected to be kept within the private spheres of individuals. By attempting to markedly separate the public from the private, the new Uruguayan State sought to establish an order based on equality and which would not serve any particular interest that did not benefit society as a whole (da Costa, 2009). Through this assessment, it can be inferred that Uruguayan laicicity had its roots in a model that sought to homogenize the “public” image of the Uruguayan citizen or resident as one that keeps his or her religious preferences private, which has contributed to the long-standing external and internal image of a liberal and laic Uruguayan State.

To delineate the particular process of separation between the State and the Church in Uruguay, da Costa turns to fellow Uruguayan professor and researcher Fernando Andacht. Through the term “mesocracy” –mesocracia in Spanish–, Andacht characterizes this process as a strive for cornering a country’s official religion and transferring it to the family place, which in the end does not eliminate religion itself, but unknowingly gives birth to a new shape of religion in which the State occupies the mystic previously given to the official creed. The Catholic faith is replaced, then, by the State in the collective consciousness, and all social spaces are turned official – Andacht claims that this form of organization became the main Uruguayan religion in the XX century (da Costa, 2009).

After outlining the process which led to the early separation between the Uruguayan State and the Catholic Church, da Costa sets out a section in which he narrates the return of religion to the public sphere in recent times. To exemplify this claim, he cites the first visit made by a Pope to Uruguay; in 1987, Pope John Paul II officiated a big-scaled Mass in the center of Montevideo, where a 30-meter tall iron cross was erected in what has been one of the largest massive gatherings in the history of the country. It was suggested by the then-President that the cross would be kept in place as a reminder of the Pope’s visit and the unity it enabled –the suggestion faced open criticism in the media. This debate became highly politicized as a large part of public opinion categorized the move as a step backwards and a violation of the laic State. Despite local congress turning the proposal down, the National Congress gave its approval after heated discussion and open disagreements (da Costa, 2009). The cross stands to this day.

Shortly after, the installation of another religious figure in Montevideo occurred; a group pertaining to a community that self-identifies as part of an Afro-Brazilian cult successfully lobbied to erect a statue of Afro-Brazilian deity Iemanjá. This happened without any public debate or disagreement. Through some other examples, da Costa concludes that there is a palpable difference between the public treatments that the Catholic Church receives as opposed to other cult.

Da Costa reads the difference between the attitudes that non-Catholic cults receive from the public and the one posed vis-à-vis the Catholic religion as a result of the historical role the Catholic Church had in the colonization process and the link between Catholicism and colonial power. Furthermore, the Uruguayan state fought to be separated from the Catholic Church, so it is no surprise that when it comes to debates about protecting Uruguay’s laicicity, it is always in reference to Catholicism (da Costa, 2009).

Da Costa makes the statement that modern-day Uruguay does not hold the level of open confrontation between Church and the State that it did at the end of the XIX century and beginning of the XX century, and that the “intransigent” Catholicism pushed by the Vatican as a response to modernity does not constitute nowadays the attitude of the Uruguayan Catholic Church (da Costa, 2009). Da Costa also emphasizes that the early separation of both spheres, the

49 lack of financial support from the State to the Church, along with the fact that religious groups and churches are not required to register with governmental authorities, has derived in a set-up in which the social legitimacy and credibility of the Church comes from society itself and does not depend on support from the State.

Furthermore, he assesses that Uruguayan society has become more tolerant of religious expressions, Catholic or otherwise, and that the image of “obscurantism” and ignorance previously and strongly associated with religion has lost vigor among Uruguayans. Actors who had been formerly preoccupied with demarcating a division between the State and the Church are nowadays attending to other matters as the Uruguayan State has successfully constructed its legitimacy and no other institution, including those with religious affiliations, may contend its position. The Uruguayan Church, for its part, has accepted the role of modernity and has transited towards a positive acceptance of the partition (this contrasts the Argentina Catholic Church’s the reaction to the modern project as narrated by Juan Esquivel). In this way, Uruguayan laicicity is beginning to recognize the religious space, while respecting the need to separate Church and State in order to furnish an environment driven by equality and freedom in which no religion holds an advantageous position over the rest –da Costa refers to this as a “laicicity to match the XXI century” (da Costa, p. 45, 2009).

Near the end of his article, da Costa brings forward Uruguay’s debate on the legalization of abortion to illustrate the diverse positions taken by different religious organizations. At the time when da Costa was writing this piece, Uruguay was experiencing a legislative effort towards the legalization of voluntary pregnancy termination. He asserts that at that moment, the Catholic Church was actively and openly campaigning against the project, while supporters of legalization were also taking to the public space to counter the Church’s offensive. He remarks that both positions were being pushed from within civil society with the objective of influencing law- makers, but legislators enjoy absolute autonomy from religious pressures and influence. However, as explained before, this attempt was frustrated by the vetoing from the then-President Tabaré Vázquez34 on juridical and scientific grounds. Da Costa states that despite facing

34 Da Costa provides a brief description of Tabaré’s background and characterizes him as a masonic man who holds the title of oncological doctor, does not adhere to any religious belief and is married to a practicing catholic. 50 international condemnation from those who read Tabaré’s actions as having violated the principle of laicicity, local actors had not, so far, recurred to this sort of criticism against Tabaré’s decision because Tabaré’s judgement did not summon religious pretexts. Da Costa assesses that if Tabaré had presented a religious reasoning for his veto, then local critics would have joined the same narrative.

Da Costa describes the Uruguayan model of laicicity as a sort of neutrality exercised by the State regarding religion which has had positive and negative effects. To exemplify, he refers to a few of the main “achievements” pushed forward by this model: the effective separation Church-State, the acknowledgment by the Catholic Church of the modern paradigm and the protection of secularism that this produces, and the allowance for religious diversity to emerge in society. Furthermore, he states that a number of members of the Church are indeed satisfied with the freedom that comes with not being subjected to the government’s mandates and desires, which enables the Church to practice their dogmas exempt from State interference (da Costa, 2009).

In contrast, the author also refers to some shortcomings that have stemmed from the Uruguayan process of secularization. In particular, he makes mention of the “Jacobin undertone” (da Costa, p. 59, 2009) that initially characterized said process, which according to da Costa resulted in an environment where differences are denied and where there has been a strong anti-religious and anti-clerical sentiment.

To conclude his article, Néstor da Costa discusses the “challenges of laicicity at the beginning of the XXI century” (da Costa, p. 60, 2009). In this last section, da Costa provides his personal stance on what he believes modern laicicity should advocate for. He states that it is not sufficient for the laic State to accept and tolerate different religious expressions, but that it should also work to integrate them as part of a mutually-enriching, diverse ambience. Finally, he reiterates that Uruguayan laicicity is so entrenched in the South American country’s society that there is no possible contender that could jeopardize it as there are no actors that have the desire or capacity to do so –however, he remarks that the concept of laicicity is one that transforms with time, and Uruguayan society will have to find ways to redefine it and adapt it to a multi-cultural environment in which diversity is included without any prejudice (da Costa, 2009). In this way, it

51 becomes clear that da Costa’s article has a multiculturalist underpinning which promotes the respect for a culture’s unique traits rather than assimilation, and that he believes that this environment should be actively nurtured by the State. Nevertheless, he does not mention how exactly the State should enforce this.

Perhaps, the two most relevant takeaways from da Costa’s article are as follows: the early separation of the State and the Church in Uruguay was dependent on unique historical events pertaining to this country’s particular context –mainly the weakness of the Church when the country was first colonized– and the fact that despite Uruguayan society being tolerant of religious expression and still holding an important number of religious adepts –57% of Uruguayans claim to have some religious belief (Opción Consultores, 2019)–, the Uruguayan state remains a secular one where religion is seen solely as part of the private sphere.

Da Costa’s article provides a solid, summarized overview of the events that led to the early separation of the State and the Church in Uruguay and gives some insight as to why this separation was not as effective in other Latin American countries. Despite the relevance of the events described, the text’s timeline is at times confusing as it can lack continuity –for example, at one point he claims that public religious debate had a resurgence in Uruguayan society in the 1960s, but after this he immediately begins to discuss the debate surrounding the cross that was erected during John Paul II’s visit in 1987. He does not mention any events or debates that may have happened in the 1960s to warrant such a statement.

Additionally, to back one of his strongest arguments –that the State’s standing in society is not menaced by any religious institution and that Uruguayan churches see the break between State- Religion as a positive quality– he mentions previous “research made on this matter”, but does not cite such research or provide any further information regarding its content.

Aside from these discontinuities and weaknesses in structure, the article presents some contradictions. Throughout the text, da Costa makes reference to a Uruguayan model which respects diversity and equality and even cites this as one of the biggest consequences stemming from the Church-State separation. However, he also gauges the same model as being a denier of

52 differences and establishes diversity as Uruguayan laicicity’s main challenge in the early XXI century.

Lastly, da Costa’s text suffers from some outdated information, especially regarding the Church’s efforts to influence public policy –but, of course, any text will be subject to changing times, events and attitudes. In particular, da Costa’s article claims that the Church has accepted the modern paradigm and that it sees the separation with the State as a positive attribute. However, after the 2012 law on voluntary pregnancy termination was approved, through an official letter written by the Council of the Uruguayan Episcopal Conference the Catholic Church called on believers to seek the removal of the law through “any means they may deem opportune” (Los Obispos de Uruguay, p. 4, 2012).

Perhaps the biggest strength of da Costa’s article is his appeal to the creation of a type of secularism that advocates for multiculturalism rather than assimilation, although the debate between multiculturalism and assimilation is a hot one with strong arguments on both sides.

2.6 Conclusion

When it comes to assessing the differences between Argentina’s and Uruguay’s regulations on voluntary pregnancy termination, it could be said that Uruguay has successfully furnished a more equal and safer environment for women by legalizing abortion regardless of cause up until week 12 (14 in the case of rape). However, there are many shortcomings in Uruguay’s law that should be bridged in order to enforce an even more liberal and healthier environment, as demanded by feminist organizations –this includes the removal of the requirement to produce a judicial report in case of rape, the necessary reflection period and the compulsory pre-abortion consultations. For its part, Argentinean laws have created a space in which vulnerable women are pushed to the sidelines of illegality and danger, and despite the large support for legalization among society, Argentinean government institutions have failed to address this issue –the 2018 proposal could have had, indeed, a big impact on these women as it was even more disruptive than the present Uruguay law.

Much research on the matter of the historical link between the Catholic Church and the Argentinean State and its impact on public policy and State action has been conducted throughout the years, placing the main emphasis on describing the events that have shaped this relationship throughout history –particularly the strengthening of this relationship during the military dictatorship that lasted from 1976 to 1983. When it comes to Uruguay, focus is usually placed on the largely liberal nature of the State and its early separation with the Church, which is usually traced back to the originally weak position of the Church during colonial times. However, there seems to be a gap in the fact that most of this research does not generally include a clear gender perspective. The authors explored in this review make mention of the influence this link has had on some sexual and family rights, but do not go deeper into analyzing the impact it has had on women’s human rights and free agency. Additionally, they do not make use of a theoretically outlined thread when it comes to assessing the events and actors that have produced these realities –the present work aims at bridging this gap by incorporating a reading from Pierson’s perspective on path dependency and increasing returns dynamics.

In general, there also seems to be a lack of comparative studies contrasting both countries’ experience in depth regarding their divergent paths and their results in the matter of voluntary pregnancy termination.

3. Theoretical Background: Paul Pierson’s Increasing-Returns-Based Approach to Historical Institutionalism and Path-Dependency Theory

To understand why some norms and values embedded in juridical, cultural and political spaces often become entrenched obstacles in the conquering of further civil rights and implementation of equality-driven public policies, one may look at the historical context, events, tensions and dynamics that have shaped the system of a Nation-State. Current-day events may be read as non- isolated incidents driven by historical forces, and as a part of a chain of reaction highly influenced by each “block” and the timing of these courses of action. A social sciences approach that can be useful when analysing such historical chains and undertaking comparative studies is that which has been dubbed historical institutionalism –pundits of this theory include scholars, political scientists and economists such as Theda Skocpol, Douglass North and Paul Pierson.

The theory of historical institutionalism provides a conceptual framework for the relationship between actors and institutions and how these actors adapt their behavior to the workings of these institutions. It also highlights the distribution of power that institutions set amongst different social groups, provides the background for the understanding of how institutional development is centered on the consequence of events and historical processes, and identifies components of the public policy process that can contribute to the advent of policy choices apart from institutions (Potůček, 2017).

The present work takes on Paul Pierson’s outlook of historical institutionalism, particularly his approach to the concept of path-dependency. Paul Pierson is an American Yale University-PhD graduate, a political science professor at the University of California at Berkeley, and an award- winning author of a number of books and academic articles (Berkely Political Science, n.d.). The path-dependency concept illustrates the hardships of bringing about change in a sequence of events that has already set the way for future decisions to an extent.

In his widely cited 2000 article titled Increasing Returns, Path Dependence, and the Study of Politics for The American Political Science Review, Pierson draws on economic theory to illustrate path-dependency as a “social process grounded in the dynamic of ‘increasing returns’” (Pierson, p. 251, 2000). In this article, he outlines the general claims that historical institutionalism assigns to path-dependency theory: specific timing and sequence patterns matter if starting from a similar condition, and a broad range of outcomes is plausible; small events may derive in big consequences; particular action sequences may be impossible to reverse; and a political outlook is often impacted by “critical moments” that “shape the basic contours of social life” (Pierson, p. 251, 2000). But he seeks to add another layer to such a concept by turning to the social and political meaning that the notion of increasing returns (which he also refers to as “positive feedback” or “self-reinforcing” processes (Pierson, p. 251, 2000) may bring.

According to Pierson, increasing returns35 embody two essential elements of path-dependency theory: (1) they illustrate how the cost of choosing one path of action over the other increases

35 Pierson takes on economist Brian Arthur’s groundbreaking work on increasing returns and path dependency, which is focused on economics –particularly technology-based industries—, and seeks to adapt it to the logics of politics. 55 over time, and (2) they shine light on the importance of “timing and sequence” by highlighting the differences between “formative moments” and “the periods that reinforce divergent paths” (Pierson, p. 251, 2000). Pierson claims that timing is, therefore, of paramount essence when engaging in path-dependency analysis, and that the increasing returns dynamics approach can help understand the value of hypotheses that are based on sequence and timing of historical events, particularly because they can be quite useful when attempting to explain diverging outcomes.

Pierson provides a clear and digestible sketch of how path dependency in a social process can be interpreted through the idea of increasing returns:

“In an increasing returns process, the probability of further steps along the same path increases with each move down that path. This is because the relative benefits of the current activity compared with other possible options increase over time. To put in in a different way, the cost of exit –of switching to some previously plausible alternative– rise” (Pierson, p. 252, 2000).

When an action gives in increasing return, actors are prone to take another step in that direction and focus on the alternative that has shown to give them some benefit –but this, of course, does not mean that the other options were not as (or more) effective, but rather that decision-makers have locked-in their position because of an initial positive feedback. Actors are then able to learn how to walk this path (the learning effect) in order to derive more pay-offs (which become self- fulfilling expectations) and this is reinforced with each step taken and with every actor who joins the same route because this increases the benefits of the individual and turns other paths unattractive. Additionally, as the path becomes more advantageous its attraction power rises, and more and more individuals take interest and invest in it (in other words, they are “picking the right horse” (Pierson, p. 254, 2000)) –this is called the coordination effect (Pierson, 2000). This analysis can be applied when studying the development of institutions –including their origin, persistence and change–, the formation of social movements, the positions and attitudes of legislators, and many other fields pertaining to political science and other social sciences. And,

56 indeed, when it comes to passing a law project, coordination within the legislative power is crucial (Pierson, 2000). An actor’s action may become highly dependent on other actors’ actions.

In this sense, new institutions, reforms and policies may result too costly as they may generate a new wave of learning and coordination effects –this perception works as an incentive for actors (individuals or organizations) to remain on the “known” path instead of venturing towards hypothetical alternatives whose effectiveness is unpredictable. Additionally, political institutions –which are subject to the ambiguity and complexity of politics– are not prone to learning novel processes, and even when learning does occur it often faces a series of obstacles (Pierson, 2000). Furthermore, politics are particularly vulnerable to the logic of increasing-returns-based-path- dependency, and therefore especially resistant to change. This is because of the limited-time horizons faced by political actors and the persistent status quo bias in political institutions when it comes to decision-making (Pierson, 2000). This vulnerability is explained as follows:

- Limited-time horizons: Pierson highlights the short-term character of the motivations driving political actors to make decisions. Politicians are often mainly interested in the short-term consequences of their actions rather than the long-term effects –this is because they are preoccupied with the implications of their choices on the electorate’s preferences, which are set in the shorter term. This is especially true when it comes to deep institutional reforms, as the impact of such reforms tends to play out in the long-run. Politicians will consider long-term effects only when these are not expected to damage the perception of their voters. Hence, it can be expected that long-term costs and benefits do not often influence the choice of path –and once that path has been taken, actors are not likely to feel incentivized to choose an alternative because the costs of doing so will have to be borne in the short-term (Pierson, 2000). - The status quo bias in political institutions: Public policies and formal institutions are highly change-resistant because they are engineered to be difficult to reverse because of two main reasons. In the first place, those actors who set-up these institutions may wish to “bind their successors” (Pierson, p. 262, 2000) by ingraining rules that make change hard to enact in order to prevent the opposition from overturning their institutions.

In the second place, these same political actors may also be required to establish boundaries to themselves, which strengthens the resistance to change. As an example, Pierson cites the unanimity rule of the European Union.

Lastly, Pierson overviews the main features in path-dependency and increasing-returns processes:

1. Multiple equilibria: When there is a group of initial conditions that may lead to increasing returns dynamics, a number of outcomes are possible. 2. Contingency: Small events may have large and lasting impacts if they occur in the “right moment”. Therefore, one can speak of “critical moments” that reinforce a path and trigger certain patterns, even if these moments were not “big” events and even if they were accidental. 3. A critical role for timing and sequencing: In the process of increasing returns, the timing of an event is crucial. Earlier patterns matter much more than later ones, and events that take place “too late” may have no effect at all –even if they could have mattered greatly had they happened at an earlier stage. It follows, then, that even if the original event is no longer occurring, it may have a long-lasting footprint. 4. Inertia: When an increasing returns path is undertaken, positive feedback may derive in equilibrium, which will be resistant to change.

It is worth noting that Pierson remarks that path dependency studies do not claim that change is not possible at all and that once a particular path has been chosen, an actor’s position and a social outcome is permanently locked-in and frozen in time. Instead, this kind of analysis seeks to recognize that historical events and when these events happen may have a strong influence on many institutional practices that often show high reluctance towards change. Change can happen if “something erodes or swamps the mechanisms of reproduction that generate continuity” (Pierson, p. 265, 2000). Indeed, path-dependency theory may also lay out hints as to the kind of events or processes that may be necessary to produce change (Pierson, 2000).

Paul Pierson’s perspective on path-dependency, guided by the logic of increasing returns, offers a much more useful tool when analysing institutional and public policy development than the

58 more general conceptions of the notion do. It is through this outlook that one can understand how the sequence and timing of events, however big or small these events may be, may have a very forceful impact on the path taken by decision-makers when legislating norms, enacting public policies or establishing institutions –which, in turn, determine social outcomes. Pierson challenges, and indeed criticises, political scientist that wrongly and misleadingly focus on synchronic casualty and ignore historical causes when approaching an understanding of current- day events. He advocates for a standpoint which engages in studying the critical moments –and their sequence– that have triggered certain patterns (a path) and the “mechanisms of reproduction” (Pierson, p. 263, 2000) that reinforce these patterns. Increasing-returns dynamics may help social scientists delineate hypothesis about the source of present-day social realities, particularly when taking part in comparative studies that aim to explain why environments may differ context to context –as is the case of the present work.

4. Methodology

4.1 Introduction

The objective of this work is to outline the historical path that has led to strong ties between the Catholic Church and the Argentinean state to understand how this relationship has played a part in the establishment of restrictive abortion rights for women in the country, despite there being strong social support for the legalization of voluntary pregnancy termination. This will be contrasted with the experience of Argentina’s neighboring country Uruguay, which liberalized abortion in 2012 and which has built a different type of relationship with the Catholic Church – which despite having attempted to exert pressure on the government to reject or derogate the 2012 law, they did not succeed in overturning this advancement in civil rights for Uruguayan women. These two countries share a history of colonization and evangelization, but host divergent paths stemming from different events that have led them to contrasting social outcomes.

To outline and grasp these paths, this work will turn to American political scientist Paul Pierson’s outlook on increasing-returns-based path dependency theory. This theory offers political scientist a valuable tool when approaching comparative analysis of diverging social outcomes because it 59 seeks to explain them through differentiated analysis of the particular history that has influenced particular contexts and current-day laws, institutions and public policies. Contexts may have had similar starting points, but the timing of these original starting points and the sequence of critical events that followed them may offer explanations as to why each environment varies. Additionally, it may also offer an opening for hypotheses on what may be needed to drive change and expand civil rights for citizens –in this specific case, women’s reproductive rights. This perspective contrasts research based on synchronic causality, which is often short-sighted because, as illustrated by Paul Pierson, it only supplies a “snapshot” (Pierson, p. 263, 2000) of a social reality and disregards its temporal background –this often leads to a distorted reading, misleading methods and questions, and a deficient understanding of the complexity of politics (Pierson, 2000).

Therefore, this text will concentrate on situated historical events and texts that may explain legislators’ and decision-makers’ choice of path regarding the relations between the State in the Catholic Church in both contexts, and how this has impacted abortion rights for Argentinean and Uruguayan women. It will also aim to discern how these critical and reinforcing events have led to a chain of increasing returns dynamics, incentivizing political actors to remain within the same path and establishing change-resistant institutions. The nature of this research is qualitative and all data used are secondary.

4.2 Methods of Data Collection

Critical moments and the chain of events in which they are embedded may have direct influence on the divergent social reality that surrounds different societies (Pierson, 2000). To be able to collect information on all critical events and each bloc of the chain would undoubtedly lead to years-long research, but this work will attempt to provide information of some of the most relevant events –be it historical events or the result of a historical event such as laws or Constitutional passages, as these may also constrain or enable action– that may have had an impact on the situation regarding women’s abortion rights in Argentina and Uruguay. For this, the time demarcation of this study is separated in two: the events leading up –roughly since their colonization– to the promulgation of each country’s current law regarding the generalities of their

60 relationship with the Church; and events that took place during both countries’ military regimes in the 1970s and 1980s. Additionally, present and past constitutional text delineating these States’ ties with the Church will also be presented. It follows that the analytical thread behind this work is deductive as it will aim to base its research on the theory of increasing returns and path- dependency as outlined by Pierson.

The following critical events or legal constraints will be described in order to trace the path dependency of the current state of affairs regarding the relations between the Catholic Church and the State in both countries:

- Argentina: o Short historical background –events, context and actors– on the possible link between the Catholic Church and the political power in Argentina leading up to the country’s first and current Constitution of 1853 (this Constitution is still valid nowadays after undergoing a number of reforms). The events presented are those gathered by Juan Cruz Esquivel in his 2009 article The State and the Catholic Church in Recent Argentina: The Terms of a Complex Relation36, priest and academic PhD Luis Martín Caballero in his 1992 piece The Religious Matter in the Argentinean Constitution37, and Argentinean researcher Germán Torres in The Catholic Church, Education and Laicicity in Argentinean History38 from 2014. By gathering information regarding the possible links between the political sphere and the Catholic Church and religion leading up to the Argentinean independence and crafting of the first Argentinean Constitution, one may understand the reasoning behind some of the constraints and regulations that the legislative and executive powers may face when discussing law projects even today. o Constitutional texts that may demonstrate the existence or the lack of legal link between the State and the Catholic Church or religion in the past and today –for example: the now-derogated Constitutional article on the requirement for the

36 As translated by this work’s author. Original name: Estado e Iglesia católica en la Argentina reciente: los términos de una compleja relación. 37 As translated by this work’s author. Original name: La Cuestión Religiosa en la Constitución Argentina. 38 As translated by this work’s author. Original name: Iglesia católica, educación y laicidad en la historia Argentina. 61

Argentinean President to profess the Catholic religion and Article 2 of the Argentinean Constitution in which a legal link between the State and the Catholic Church is clearly established (Constitución de la Nación Argentina, 1995). - Uruguay: o Historical background –events, context and actors– on the possible link, or lack thereof, between the Catholic Church and the Uruguayan State. The events presented are those gathered by Uruguayan monsignor Ignacio Barreiro Carámbula in his 2017 piece Uruguay: Secular Country for the publication Fuego y Raya, and to a lesser extent those explored by researcher Ulises Gastón Pioli for his 2013 book The Uruguayan Laicicity and the XXI Century Challenge39, as well the article by da Costa’s that was previously reviewed. The focus is on events leading to the promulgation of the Second Uruguayan Constitution of 1919, where the separation between the Church and the State is made explicit through its Article 5. As with the case of Argentina, understanding the events and the context which led to the formation of the Uruguayan identity and the Uruguayan laws after becoming a sovereign State may provide insight into the environment in which the legislative and executive powers operate nowadays.

These events were selected as being critical as one cannot understand the development, identity and legal structure of Latin American countries and societies without looking back at colonial times and the introduction of Catholicism in the region during this period. Latin American countries crafted their constitutions and regulations after having been evangelized and subjected to cultural remodeling, and after having fought for their freedom from European powers –the manner, extent and timing in which each country faced evangelization and cultural remodeling may have derived in different constitutional environments and institutions, which may have a direct influence on policy.

Additionally, understanding the part that a religious institution can play in the legitimization of a government, it is important to gather knowledge on whether the Catholic Church has played such

39 As translated by this work’s author. Original name: La Laicicidad Uruguaya y el Desafía del Siglo XXI. 62 a part in Argentina or Uruguay. Due to the fact that both countries were subjected to military dictatorships and that the Church –as an important actor of largely catholic societies– may have played different types of roles during this period, there will be a focus on this matter. Additionally, grasping the possible link between an institution, be it religious or else, and a dictatorial regime may shed light on how strong this institution’s autonomy is or how obliged or incentivized they may be to take part in the regime –therefore, how strong the link between this institution and the governmental apparatus is. With the aim of collecting information about the role the Catholic Church and religion played during both countries’ military dictatorships, which may have served a reinforcing event, the following sources were consulted and the following events will be described:

- Argentina: o Historical events that may demonstrate the existence or lack of a link between the Catholic Church and the military junta that ruled Argentina from 1976 until 1983. The events presented in this work are the ones narrated by Argentinean regime- era human-rights campaigner Emilio Mignone in his short 1986 article The Church and the Dictatorship: The Argentinean Experience40. This will be supported with events collected by Esquivel in The State and the Catholic Church in Recent Argentina: The Terms of a Complex Relation. o A review of the expressed stance of the Catholic Church regarding the military regime through a letter emitted by the Argentinean episcopate after the ousting of President Isabel Perón and other pronouncements by Argentinean Catholic elites. - Uruguay: o Historical events that may demonstrate the existence or lack of a link between the Catholic Church and the military dictatorship of 1973-1985. For this, a 2018 documentary titled Faith in Resistance (Fe en la Resistencia) and directed by Uruguayan Nicolás Iglesias will be overviewed. This documentary was produced by a multidisciplinary group of theologians, political scientists and historians who

40 As translated by this work’s author. Original name: Iglesia y dictadura: La experiencia argentina. 63

interviewed more than 50 people about the role of resistance that different religious organizations and actors (not only Catholic) had during this period (EFE, 2018).

The events during these periods are treated as reinforcing events as they took place well beyond the crafting of each country’s constitution and the establishment of their relationship with the Catholic Church. They may also demonstrate the strength of the link between the Church and Uruguayan and Argentinean governments by looking at whether the Church had a role or not, and what the nature of this role was.

When approaching legal documents (such as both countries’ Constitutions) or statements41 this work will conduct content and discourse analysis42 to discern intentions, meanings and attitudes that may demonstrate the existence, or lack of, official or de facto links between the Catholic Church and the governments in Argentina and Uruguay. Following the description of these critical or reinforcing moments, this thesis will discuss said results under an analytical framework based on Paul Pierson’s path-dependency and increasing returns approach –naturally, timing and sequence will play a central role.

In sum, this research followed the following theoretical background when assessing selection of events:

- Selection of critical events in order to find original divergences in the way in which both Argentina and Uruguay developed their relationship with the Catholic Church –mainly the process of colonization and the constitutional bodies resulting from independence. The timing of foundation of the capital cities of both countries, the role of Church during the colonization process, and other considerations such as how densely populated these

41 The statements and interviews analyzed were made by: (1) Argentinean dictatorship-era Bishops Juan Carlos Aramburu and Victorio Bonamín; (2) a letter emitted by the Argentinean episcopate during the dictatorship; (3) one of the Argentinean regime’s torturers and interrogators Captain Acosta; (4) Uruguayan writer Hiber Conteris; (5) Franciscan historian Mario Cayota; (5) Founders of NGO Service Peace and Justice, Francisco Bustamante and María Martha Delgado; (6) an unnamed man presented in the documentary Fe en la Resistencia. 42 “Content analysis is a research tool used to determine the presence of certain words, themes, or concepts within some given qualitative data” (Columbia University, p. 1, n.d.). For its part, discourse analysis is a “method for studying written or spoken language in relation to its social context” (Luo, p. 1, 2020). 64

territories were and the timing of massive European immigration, seem to may have had an influence in the origins of the Church-State links. - Selection of reinforcing events –in this case, both country’s military regimes in the 70s and 80s and the role of the Church– that might have had an influence on the continuation of a path and why today’s authorities have not separated from that path. The logic of increasing returns can shed a light as to why actors may find it too costly to seek alternatives –they may need to undergo a new learning or coordination process. Additionally, the role of the Church may provide insight as to how strong their relationship with government authorities was at that moment, which may prove that the presented critical events had influence indeed in the choice of path –was this role one of support or of confrontation? - These events may have set boundaries for future action for government authorities –and indeed also the Catholic Church–, resulting in different outcomes when it comes to women’s reproductive rights today.

It must be noted that path-dependency theory and historical institutionalism are quite popular when undertaking comparative studies, as explored by Kathleen Thelen in her 1999 article Historical Institutionalism in Comparative Politics, in which she overviews recent developments in this field by compering various scholars’ work. Thelen discusses work by Katzenstein, Luebbert and Collier & Collier, who all take on historical institutionalism to study path divergences.

In particular, Collier & Collier’s 1991 work titled Shaping the Political Arena: Critical Junctures, the Labor Movement, and Regime Dynamics in Latin America focuses on the evolution of politics in Latin America in the XX century and the change of the relationship between the State and labor movements. In this article, they argue that there were periods of “critical junctures”, mainly reforms, that shaped the politics of several Latin American countries in decades to come by creating change-resistance structures (Collier & Collier, p. 11, 1991). For this, they identified and compared critical events and established hypotheses about differentiated consequences in each country –they argue that if an event cannot be proven to have established a form of legacy, then it cannot be considered critical. Additionally, they discuss what they call “mechanisms of reproduction of the legacy” (Collier & Collier, p. 31, 1991); political and institutional processes

65 that provided stability to a legacy by perpetuating it. It could be stated that their methodological approach is somewhat similar that that of the present work –identifying critical and reinforcing events that may have had a lasting impact on a State’s policies.

4.3 Limitations

It must be noted that the referred historical events stem from a number of research articles by journalists, academics and renowned social scientists who have compiled information on both countries’ historical relations with the Catholic Church. The intention of the present work is to undertake a comparative analysis between the events –as presented by said researchers– that may have influenced divergent paths in voluntary pregnancy termination laws. Due to time, resource and access limitations the author of this work did not engage in first-hand historical research at national archives or through direct interviews to relevant actors. Other limitations include:

- The second or third-hand overview of historical events is undoubtedly impacted by the lack of all information. Undercover meetings, unreported events and the near impossibility of compiling reported events in centuries-long history is a gap that one can hardly presume to bridge. However, one can still pinpoint certain events that may have been singularly crucial for the type of analysis this work engages in, which can provide a general understanding of history at particular moments in time. Additionally, this work does not take into account actors’ personal motivations in terms of possible financial incentives, pressure deriving from family or social relations, ethical considerations, etc. Therefore, its explanatory potential is only partial. - By compiling secondary data one is subjected to the pre-selection of the original researcher, along with their personal biases and omissions. - As the nature of this work is qualitative, all data are subject to the personal interpretation of the author and the particular lens through which the author of this work analyses the results. - In the case of the interviews presented in the documentary Faith in Resistance, one can expect that the results of these interviews suffer from the same limitation as other similar

exercises: generalized results from interviewing only a sample of the population of interest. Nevertheless, one can still obtain insights into the sentiments, actions and motivations of a number of participants which may be representative of a larger group.

5. Results

5.1 Contrasting Uruguay and Argentina: Short Background Leading up to both States’ Constitutional Bodies and the Role of the Catholic Church in these Processes

5.1.1 The Role of the Catholic Church during the Colonial Period in Argentina and its Privileged Position in the Argentinean Constitution

During colonization times43, Spanish royalty had the power to act as a representative of the Catholic Church in their colonies; they were able to appoint ecclesiastical offices, collect the tithe, order the building of churches and monasteries, etc. In this way, and backed by Catholic authorities, the Spaniards possessed the system to spread the Catholic religion in newly discovered territories and were, in addition, in control of the religious spaces that were erected. It was during this evangelization time that, in what is now known as the Argentinean Republic, the Spanish gave way to the construction of a national identity that was inherently intertwined with the Christian one –this gave the Catholic Church the capacity to interfere and influence nearly every aspect of the everyday life of the territory’s inhabitants (Esquivel, 2009).

In the case of Argentina, the Spanish Crown was able to conduct a colonization process that was largely enabled and supported by evangelization efforts. With the Patronage propelled by the Pope in 1508, it was established that colonizers were not only to expand their borders and conquer new markets, but they were also tasked with the conversion of indigenous populations into the more “civilized” world of Christianity (Torres, 2014). In Argentina, it was the

43 Beginning with the discovery of the Americas by Christopher Columbus in 1492. The city of Buenos Aires was first founded in 1536 by Spaniard Pedro de Mendoza after a couple of failed attempts that were suppressed by the local indigenous populations (Molina, n.d.). Buenos Aires would later become the capital of the Viceroyalty of Río de la Plata. 67

Mercedarians, Jesuit and Franciscans orders the ones who initially facilitated the territory’s evangelization and founded the first educational centers (Torres, 2014). It is believed that the first primary school in what would become Argentina was established by the Jesuit order Society of Jesus in 1615, and this would begin the path towards a public education that was fully managed by the Catholic Church during colony times.

Shortly after, a number of colleges administered and staffed by the clergy –such as the Montserrat College and the San Ignacio College– were founded, and in 1622 the very first university in the territory started to operate after the Pope Gregory XV provided permission for a Jesuit- administered college to begin issuing academic degrees in Córdoba. This would later become the University of Córdoba (Argentina Histórica, 2008).

The fact that the Catholic Church held the role of educational authority gave it the power to “homologate the religious identity with the geographical and cultural one” (Esquivel, p. 105, 2009). It follows that the Spanish Crown and the Catholic Church were partners in the forging of the cultural identity of what would later become the Argentinean society; the Catholics were in charge of the public education44 in the territory, through which they evangelized the population, and the Spanish Crown was in charge of appointing ecclesiastical offices and of authorizing the construction of new Catholic centers. Furthermore, the Catholic Church controlled the registry of births, deaths and marriages in the territory until the end of the XIX century, and during election times Catholic churches served as location for the casting of ballots (Esquivel, 2009). It is clear through these links that the political sphere and the Catholic Church were tightly intertwined.

After the independence of Argentina in 181645, this new nation walked a long path towards the establishment of their first Constitution and the assembly of a national identity after centuries of Spanish rule. After several attempts beginning in 1815, the first Argentina Constitution came into force in 1853 and was crafted by an assembly that was shaped by a number of men who, despite being influenced by liberal ideas inspired by the French Revolution, had a Catholic upbringing, had been educated within this religious line and understood that a large part of the population

44 Laic education in Argentina was installed in 1884 through the 1.420 Law, which also established free and obligatory education in the country (Domínguez, 2017). 45 The process of independence of Argentina began in 1810 with the May Revolution (Caballero, 1992). 68 professed Catholicism (Caballero, 1992). It is worth noting that in Argentina the independence movement did not seek to break with the Catholic Church. Indeed, even from the beginning of the independence movement in 1810, the debate on how to integrate the Catholic religion in the rules that would be established Argentina was at the center; for example, during the First Meeting of the Patriotic Government in May 1810, the attendants configured what would be called the “May Ideal”, a proclamation that swore to conserve the Catholic religion through any possible means during the struggle that was to come (Caballero, 1992). By this point, the Catholic Church had played a role in fashioning a national Catholic identity so strong that it would be later included in the national laws of the country.

During the following years, discussions on whether the Argentinean State should consider Catholicism as a state religion derived in a number of project proposals that oscillated between absolute freedom of religion and the prohibition of the profession of alternative creeds. Finally, when the Constitutional Assembly was discussing the matter when drafting the Argentinean Constitution, it was decided against placing Catholicism as the State’s official religion as the majority of the members of the Assembly were part of the liberal sector. Nevertheless, a compromise between both views was reached through the formulation of the Constitution’s 2nd Article: “The Federal government sustains the Catholic Apostolic Roman cult”46 (Constitución de la Nación Argentina, 1995). This article is still valid nowadays and it has given way to different interpretations that focus on a controversy that considers if this means that the government ought to provide materially47 for the Church or if Catholicism should be considered as the State’s religion on more ideological grounds (Caballero, 1992) –nevertheless, this article clearly establishes a constitutional link between the Catholic Church and the Argentinean government.

However, it must be noted that Articles 14 and 20 of the Argentinean Constitution declare the freedom of creed for both national residents and foreigners –this guarantee has been included in the Argentinean law since 185348. For its part, Article 19 draws a division between that which

46 All translations of legal documents were done by this work’s author. 47 130 million Argentinean pesos are granted each year to the salaries of Argentinean bishops (La Capital de Mar de Plata, 2018). 48 One of the main reasons that the Assembly had to provide this guarantee was the desire to attract immigrants and, with that, higher trade, particularly with Great Britain (Caballero, 1992). 69 should be of the State’s interest and what should not be: “The private actions of men that in no way offend the public order and morality, and that do not damage a third party, are reserved only to God and exempt from the authority of the magistrates”. It is pertinent now to emphasize the usage of the word “God” in this provision.

Past provisions also delineated strong ties between the government and the Catholic Church and religion, such as the following:

- The transferring of the Patronage from the Spanish Crown to the Argentinean State, which was instituted in Articles 67 and 86 of the 1853 Constitution. These articles allowed for the executive power to appoint Bishops and gave the legislative power the attribution of managing the Patronage in all of Argentina. This point was never one of contention for the Constitutional Assembly (Caballero, 1992) and was only revoked in 1966 when the Argentinean government signed an accord with the Vatican (Esquivel, 2009). - The subsection number 15 of Article 67 of the Argentinean Constitution promulgated in 1853 established the duty for the National Congress to “conserve the peaceful relations with the indigenous and promote their conversion to Catholicism” (Gobierno de Argentina, 2018). This article was derogated during the 1994 constitutional reform and replaced, for the first time, with the acknowledgment of the right for the indigenous to preserve their unique identity (Gobierno de Argentina, 2018). - Article 76 of the 1853 Constitution required the following: “In order to be elected President or vice-President of the Confederation, it is necessary to have been born in the Argentinean territory, be the son of a native citizen if having been born in a foreign country, belong to the Catholic Apostolic Roman communion (…)” (Caballero, 1992). The main argument behind this demand stemmed from the fact that since the State was to continue the Patronage and sustain the Catholic cult, then only a Catholic President would be able to ensure the enactment of these clauses (Caballero, 1992). This article was also removed with the 1994 reform arguing that since the Patronage had been abolished, then this requirement had become outdated –the Catholic Church did not oppose this change (Esquivel, 2009).

- The oath that the President and vice-President had to make when taking office until the 1994 reform was the following: “I, (name), swear to God and these Sacred Gospels, that I will perform with loyalty and patriotism the office of President (or vice-President) of the Nation, and observe and enforce the loyal observation of the Constitution of the Argentinean Nation. If this is not the case, may God and the Nation demand otherwise” (Constitución Política de la República Argentina de 1853, Art. 80, 2008).

All of the cited instances demonstrate the strong role that the Catholic Church has had in the construction of the Argentinean national identity and national laws. It is clear that Catholicism enjoyed a privileged spot during the drafting of the current Argentinean Constitution, and even if several of the articles that established this privilege have been removed, Article 2 remains valid and has been perhaps the strongest indicator of the firm relationship that has developed between the Argentinean political space and the Catholic sectors since the evangelization of the territory until today.

5.1.2 Uruguayan Liberal Tradition: Relevant Events that have shaped it and the Formation of a Secular State

As previously discussed, Uruguay enjoys the world-known image of being one of the most secularized and liberal countries in Latin America. After the Portuguese founded in 1680 the first city, Colonia, in what would later become Uruguay, the Spanish arrived in the territory in 1726 and founded the capital city of Montevideo. The Portuguese would later yield Colonia to the Spanish Crown and Uruguay would join the Viceroyalty of Río de la Plata (Lessen, 1997). Montevideo was, then, established quite late after the initial exploration of the Americas –as also explained by da Costa in The Uruguayan Laicicity–, which meant that it was not possible to install the religious and cultural streams that had been so easily imposed in other areas of the Americas that had been inhabited by colonizers at earlier stages (Barreiro, 2017). Additionally, the territory was nearly empty by the time the Spaniards founded Montevideo.

With the invention of the reefer ships, Uruguay shortly became an exporter of sheep meet and beef, and the fact that these industries were not human-labor intensive led to the creation of a liberal lifestyle that nearly resembled an anarchy (Barreiro, 2017). This lifestyle would later

71 become reference for liberals to gather supporters when they rebelled the Spanish Crown. An example of this early liberal roots can be illustrated by the fact that by the end of the XVIII century, there was only one Franciscan college in Uruguay, along with a very small number of religious primary schools –this was exacerbated by the expulsion of the Jesuits in 1767 (Barreiro, 2017). This derived in a lack of religious education amongst the population, and this was furthered strengthened by the influence of rational thinking that led to the partial secularization of education in 1877 –attending religious education was made voluntary and not mandatory (Pioli, 2013)– and later on with the complete secularization of education in 1909 (González, 2017).

Furthermore, the independence movement that took place in the Banda Oriental –name of the territory Uruguay belonged to when the revolution against the Spanish Crown started in Buenos Aires in 1810– was led by the known liberal José Gervasio Artigas, who, despite having had limited formal education, was well-versed in North American liberal texts and had a liberal drive (Barreiro, 2017). Nevertheless, when the Constitutional Assembly gathered to discuss and promulgate the first Uruguayan Constitution in 1830, they agreed to establish Catholicism as the State’s official religion through its Article 5: “The religion of the State is the Catholic Apostolic Roman religion”. But they also ensured freedom of thought through Article 141 (Barreiro, 2017) –this is similar to the set-up of the current Argentinean Constitution, which declares that the State must sustain the Catholic Church while also providing the guarantee of freedom of creed.

By the time that Uruguay achieved its independence in the 1820s, the country was still largely empty as it only hosted around 70,000 inhabitants. However, beginning in 1835 the country began to see a massive influx of European immigrants, and by 1868 the population of Montevideo was in its majority of foreign background (Barreiro, 2017) –it must be noted that the immigration process started remarkably early in the Uruguayan territory, and this is further highlighted when comparing it to that of Argentina, where massive European immigration did not begin until 1881 (Huernos, n.d.). Two of the most influential immigrant groups in Uruguay were that of the British and the French, which despite having been limited in numbers held noteworthy positions: the British held offices in services such as railway and water provision and maritime trade; the French, for their part, were conducting research for technological development and also established the

72 liberal-thinking-oriented Collège Carnot in 1897 (Barreiro, 2017). The influence of the British and the French strengthened even more the liberal vision of Uruguay in the XIX century.

At this point the arrival of Giuseppe Garibaldi to Montevideo in 1841 must be mentioned. Garibaldi later fought for the Montevideo government and left a lasting impression on the liberals who would later confront the Church. Nowadays, he still holds an important place when discussing the liberal tradition of Uruguay (Pioli, 2013).

Adding to the development of a largely liberal mentality, it must be noted that the Catholic Church in what is now Uruguay did not enjoy particular strength during and after colonial times. In fact, it had a rather weak development, as explained by da Costa. It was the Buenos Aires Bishopric the one that administered the Church in Uruguayan territory until 1832 when the Uruguayan Apostolic Vicariate was created, and it wasn’t until the late 1870s that the Montevideo diocese was finally established (Barreiro, 2017).

The liberal roots of Uruguay, the arrival of liberal European immigrants, the strong influence of masonry and the weakness of the Catholic Church led to the beginning of the confrontation between the State and the Church in the 1860s with the secularization of cemeteries –the intellectual conflict that followed, along with the subsequent spaces that were relinquished by the Church to the State, was overviewed in the earlier review of da Costa’s article. Again, it must be highlighted that the relationship between the Church and the State during the beginning of the independent Uruguayan State was one of antagonism. It is adequate to mention now that, like Argentina, Uruguay had to right to Patronage, but this was never recognized by the Church and the Church had the ability to appoint their authorities most of the time until the official end of the Patronage in 1919 (Barreiro, 2017).

As the Uruguayan State began conquering without much problem the areas that had belonged to the Church, the two terms of the ex-President José Batlle y Ordoñez at the beginning of the XX century advanced this strive towards secularization further. Batlle had a particular aversion towards religions, especially Catholicism as he considered it to be an especially damaging creed (Barreiro, 2017). Batlle installed a number of secular regulations such as the creation of social security and the strengthening of a socialist government as he sought to provide Uruguayans with

73 a secular democracy (Barrerio, 2017). Batlle pushed the debate towards the legal divide between the Church and the State, and in 1919 the Second Uruguayan Constitution was published, marking the official secularization of Uruguay with Article 5 (as aforementioned) –“All religious cults are free in Uruguay. The State does not sustain any religion”. With this, the Church lost the small funds that they were receiving from the State was completely free of State interference, and vice versa (Barreiro, 2017). After this explicit break-up, Uruguay entered another period that characterized the liberal, non-religious nature of public life, such as the re-naming of all holidays or towns that had a religious undertone, as discussed by da Costa.

The long liberal tradition in Uruguay has not faced major setbacks or confrontation as the foothold of the Catholic Church has been from the beginning frailer in this territory than in other countries in Latin America, such as Argentina. Nowadays this can be seen in the largely liberal policies that Uruguay has enacted since the beginning of their secularization process until today: the legalization of marihuana consumption, voluntary termination of pregnancy, homosexual marriage, and same-sex parent adoption have been made effective in the Uruguayan State, despite the ongoing and public rejection from the Catholic Church. It is no surprise, then, that Uruguay is largely referred to as the most liberal country in Latin America.

5.2 Contrasting Uruguay and Argentina: The Role of the Catholic Church during both Countries’ Military Regimes

5.2.1 The Argentinean Episcopate and the Military Junta of 1976-1983: A Mutually- Supporting Relationship

Following the independence of Argentina and the role that the Catholic Church played in helping construct a national identity in the country, the robust link between the Church and the State continued well beyond the 1853 Constitution and has been made visible in countless events and instances throughout the XX and XXI centuries. For example, during Juan Perón’s 1946-1955 presidency, it was common to see religious celebrations at official events or Catholic authorities

74 present at the opening of a public school or hospital49. Additionally, by 1946 the National Registry for Cults had already been created; this registry required all cults, except Catholics, to register at a State office in order to receive legal recognition (Esquivel, 2009).

However, it is not possible to overview the role of the Church in Argentinean State matters in modern times without highlighting its participation during the military regime –led by a junta composed by Jorge Videla, Orlando Agosti and Emilio Massera50– of 1976-1983. It is no secret that, in an attempt to halt leftist advances, the Catholic episcopate of Argentina largely served as a loyal supporter of the regime that installed terrorist practices all across the country and that relentlessly prosecuted dissidents, resulting in thousands of forced disappearances and killings. It has been inferred that the Catholic Church elite knew that the Armed Forces were staging a coup before it happened; Videla and Massera met with Church authorities shortly before the military took power. The day of the coup the junta held a lengthy meeting with Monsignor Adolfo Tortolo, Archbishop of Paraná and President of the Argentinean Episcopal Conference at the time (Mignone, 1986). Shortly after, the Buenos Aires Archbishop, Juan Carlos Aramburu, declared that he believed that Argentina was reaching moral decadence and that it was necessary to impose renewed order. For his part, the Bishop Victorio Bonamín stated that Argentina had a need to install a military regime as this was indeed God’s will (Esquivel, 2009). The junta, on the other hand, introduced themselves as the protectors of Christian values and all that pertains to the “Western and Christian civilization” (Mignone, p. 3, 1986).

As a further example of the blind and often supportive eye of the episcopate during these times, it is possible to trace an apologetic tone for the junta’s illegitimate actions following the killings

49 At the end of Perón’s first presidency the Church and the State had come to a confrontation as both parts fought to “totalize” society (Esquivel, 2009). 50 The military coup happened as a result of a sector of the Argentinean military forces that became dissatisfied with Isabel Perón’s presidency takeover after the death of her husband. After pressuring her to step down several times, the Armed Forces, led by Videla, took over on March 24, 1976. It is estimated that at least 30,000 people disappeared during the regime. The junta was known for gruesomely torturing and murdering intellectuals, artists, journalists, politicians, among others, who were linked to the left or any opposition group. One of the most commonly used tactics was what became to be known as the “flights of death”; opponents were sedated, tied to cement cubes and thrown out of airplanes into the sea (Suárez, 2018). 75 and disappearances of opponents, including a number of priests, in the following letter issued by the episcopate in 1976:

“There are actions that are more than a mistake; they are a sin, we condemn them without nuances, no matter the author... It is the act of murder, with or without previous abduction and wherever the stance of the murdered may be... But we need to remember that it is easy to err against the common good when there is goodwill if there is a pretence... for the security organisms to act with chemical purity of times of peace, while blood flows day by day; that disorders which depths we all know could be fixed, without accepting the drastic guidelines that the situation claims; or not accept the sacrifice in the favour of the common good of that freedom quota that the conjecture asks for; or the aim to install Marxist solutions with intended evangelical reasons”51 (Mignone, p. 4, 1986).

Additionally, when defied by commentary denouncing the innumerable human rights violations perpetuated by the regime, the Church’s elite would only respond that these allegations were nothing more than a campaign to discredit the Nation of Argentina. Indeed, only four out of more than 80 Bishops declared their opposition to the Armed Forces –one of them, Enrique Angelilli, was murdered and his death was simulated to be the result of a car accident (Esquivel, 2009). The episcopate, of course, also received noteworthy support from the junta: based on the Constitution’s Article 2, the financial support given to the Church transformed from a subsidy into a salary allocated to each Bishop –this salary equalled to 85% of Argentina’s criminal judges’ wages52 (Mignone, 1986).

Clerics even had a part to play in the Forces’ detention centres; they would emotionally manipulate and break detainees during interrogations (Esquivel, 2009) and they would provide moral support to oppressors whose actions would begin to weigh on their conscience (Mignone, 1986). The Catholic-military agreement was also evidenced by some of the torturers who would wear rosaries around their necks and by statements such as one quoted by El Diario del Juicio A

51 Translation is the author’s own. 52 It is known that a number of Bishops rejected this privilege (Mignone, 1986). 76 las Juntas Militares (The Journal for the Military Junta Trial53) attributed to Captain Acosta (also known as ‘The Tiger’): “This is a fair war, Jesus is on our side” (Esquivel, p. 113, 2009).

The junta dissolved in 1983 with the call to elections after the regime saw their legitimacy shaken by their defeat in the Malvinas in 1982. During this time, the Church took it upon themselves to act as conciliators; they advocated for a “clean slate” approach –for example, they supported the Auto-amnesty Law with which the junta sought to exempt themselves from possible trials, and they pushed for dialogue between political parties, unions and the military. They aimed at acting as mediators between Argentinean society and the Armed Forces, and those who wished to see the repressors punished had to act outside of the Church’s competency (Esquivel, 2009).

After this dark period of Argentinean modern history and during the reconstruction of democracy, and as put by Esquivel, the level of the relationship between the Church and the government and whether it was one of confrontation or partnership was “characterized by the margin of influence at the disposal of the ecclesiastical elite on matters that they considered as a ‘natural’ part of their scope, namely: education, family and morals”54 (Esquivel, p. 115, 2009). The relationship between the episcopate and the Argentinean government, then, has continued, regardless of whether this relationship has been amicable or hostile.

5.2.2 Part of the Resistance: The Church during the 1973-1985 Civic-Military Regime in Uruguay

Following deep economic hardships such as high unemployment and inflation, the Uruguayan government saw itself overtaken by the Armed Forces in the summer of 1973 until the spring of 1985. The government during this period was formally headed by the elected President Juan María Bordaberry Arocena, but, in fact, the country was being managed by the military, who after exerting severe pressure on the government obtained political-administrative powers through the creation of what was called the National Security Council. Like in Argentina, the military regime resulted in countless human rights violations –it is estimated that there were at least 200

53 Translation is the author’s own. 54 Translation is the author’s own. 77 murders, more than 10,000 torture cases and dozens of thousands of political prisoners in a country that did not exceed a 3.5 million population at the time (Mármol, 2020).

The role that the Catholic Church, and others such as the Methodist Church, played during the dictatorship in Uruguay diverged greatly from the one played in Argentina. Nicolás Iglesias’ 1:21- long documentary Fe en la Resistencia collects the stories of activists –nuns, priests, pastors, and others– with affiliations to different branches of Christianism who had an active opposing part during the military regime.

Even before the coup, some Christian groups were already seeking to take on a critiquing role against injustices. As narrated in the documentary, one of the clearest examples of this was the creation of the group Church and Society in Latin America (ISAL), a political-religious collective associated with Methodism that had its headquarters in Montevideo in the 60s, up until the coup in 1973. They had interest in social justice and the re-structuration of the unequal system that reigned, and still does, in Latin America. One of its secretaries at the time, writer Hiber Conteris, even claims that the dialogue that ISAL was promoting had a “Christian-Marxist” underpinning.

For their part, and as related by an unnamed man in the documentary, when the military took power in Uruguay, Catholic elites requested an audience with President Bordaberry to discuss their concern over the visible violation of human rights. They announced that they would begin publishing documents to formally express their accusations to the public. The President, on the other hand, had initially expressed that he understood their concern, but a few days after he published an open letter criticizing the Bishops and accusing them of spreading lies, stating that he agreed with the “severe interrogations” that were being made.

During this dark period, both the Catholic and Methodist Churches became a space of solace for dissidents and society at large. For example, leaders of the Catholic Church were holding meetings in parishes where they would debate topics such as democracy, human rights, justice, and other social matters in groups attended by clerics and civilians alike –the Vicar General of the Archdiocese of Montevideo, Haroldo Ponce de León, is known to have led this movement. This, of course, was known by the regime, as evidenced by police reports (as shown in the documentary) resulting from surveillance activities. As related by Franciscan historian Mario

Cayota, Monsignor Carlos Parteli, who became Archbishop of Montevideo in 1976, was on one occasion asked by the regime’s intelligence service to provide a list of these discussions’ attendants, request which he refused decisively in order to protect them. It is known now that Catholic authorities were also lending their premises to dissidents and opponents for meetings.

The Uruguayan Episcopal Conference denounced on several occasions the human rights violations conducted by the Armed Forces –for example, they openly declared, as seen in the documentary through pictures of journals, that “confessions taken under terror do not provide certainty of the truth”55. For its part, the U.S. branch of the Methodist Church openly criticized the allocation of financial support to the military regime by the American government –this is also shown through pictures of documents.

In 1983, near the end of the regime, three Catholic priests organized a fasting period to protest against the military –this is narrated by a number of founders (particularly Francisco Bustamante and María Martha Delgado) of the Christian NGO Service Peace and Justice, which was formed to defend political prisoners during the Latin American dictatorships of the 1970s. The hunger strike, according to them, attracted so much attention that it incentivized a more widespread dialogue around the democracy crisis in Uruguay. This was a particularly visible and impactful strategy of resistance done by the Catholic Church.

In the months to come, religious groups, students, young workers and others began to shake their fear, and this, coupled with the regime’s numerous economic policy mistakes, brought the dictatorship down. The years that followed the restoration of democracy were, like in Argentina, guided by a “forgive and forget” policy (Mármol, 2020).

During the dictatorship, a large number of religious leaders, Catholic and Methodists, were imprisoned, threatened, interrogated, and even exiled or prohibited from exercising as priests, and various members of the Catholic and Methodist churches were tortured. However, their authorities continued to provide refuge for those who were fighting to resist the dictatorship or who simply needed a safe space throughout the horror. Additionally, some members of the

55 Translation of statements posed in the documentary and discussed in this work was done by this work’s author. 79

Church took part in the Comisión para la Paz56 (Peace Commission) to contribute with the clarification of forced disappearances during the regime (da Costa, 2009).

6. Analytical Procedure and Discussion of Results: Framing through Paul Pierson’s Approach to Path Dependency

This section will strive to frame the previously laid out results and analyze them through Paul Pierson’s approach to path dependency theory and increasing returns. For this, the focus will be mainly placed on the following concepts when comparing the trajectory of Uruguay and Argentina and their State-Church relationship:

- The importance of specific timing and sequence. - Critical and reinforcing moments. - Increasing returns and the increasing cost of choosing an alternative path. - Positive feedback and its influence in locking-in actors’ positions. - Learning and coordination effects. - Change-resistant institutions. - Limited time-horizons in public policy choices.

Additionally, the results of Juan Cruz Esquivel’s research on Congress Members’ perceptions on the influence of religion and the Church on policy making for the Argentinean National Scientific and Technical Research Council will be brought forward. The discussion will also integrate da Costa’s and Esquivel’s previously reviewed perspectives.

6.1 Timing and Sequence: Evangelization, the Royal Patronage, the Installment of Catholic Education and European Immigration

First, the original critical moment which derived in divergent paths in both States in terms of their level of laicicity and the influence of the Church on public policy matters will be discussed: the

56 The Comisión para la Paz was an initiative pushed by the executive power for which a number of priests were summoned and which aimed at providing some clarity regarding forced disappearances of persons during the Uruguayan Dictatorship of 1973-1985. These priests were not called due to their positions in the Catholic Church, but rather because of their commitment in fighting the countless human rights violations that were being perpetrated during the dictatorship (da Costa, 2009). 80 colonization and evangelization process and the introduction of the Catholic Church and religion in the territories of what are now Argentina and Uruguay. This event is treated as an original critical moment as it was indeed the point in time in which Catholicism was introduced in the region. Both territories were colonized and both were evangelized, but there is a key difference that may have resulted in different paths for both societies: the timing of the foundation of their capital cities. The city of Buenos Aires was first founded in 1536, while Montevideo was founded in 1726. The tardiness of the settlement of Spaniards and colonizers in the Uruguayan territory led to the establishment of a rather weak Catholic Church (this is also explored in da Costa’s article); this was exacerbated by the fact that when they founded the city of Montevideo, the territory was nearly empty –they barely had any population to evangelize, which was an obstacle in the successful imposition of Catholicism as a totalizing force. On the other hand, Buenos Aires became the capital of the Viceroyalty of Río de la Plata, to which the Uruguayan territory belonged, and its early foundation contributed to the strength of the Catholic Church.

In Argentina, the Catholic Church enjoyed more time to install itself as a particular force, and it also had a larger population to evangelize; this helped it become an influential actor in the process of colonization as the Spanish Crown made use of the Church to spread Catholicism and indoctrinate the population in order to strengthen their foothold –the more homogenized society would become, the less likely it was for religious conflicts to occur. Additionally, because of the prompt foundation of Buenos Aires, the Royal Patronage was established earlier, which assisted the instauration of a strong link between the government’s administration and the Catholic Church –the Spaniards were in charge of appointing ecclesiastical authorities and ordering the construction of new religious centers. In this sense, the Catholic Church and the Spanish government were in fact partners, and the Catholic Church in the Argentinean territory became so strong that it was the Buenos Aires Bishopric the one that administered the Church in Uruguay until 1832. As explained in the results section, it was not until this moment that the Uruguayan Apostolic Vicariate was created, and the Montevideo diocese was only established in the late 1870s. While the Argentinean Catholic Church was flourishing, developing and gaining traction, its Uruguayan counterpart was so weak and underdeveloped that it was not able to administer itself for a whole century.

As mentioned above, the Spaniards actively used the Catholic Church to homogenize society and avoid conflict. This, of course, led to the Church having a privilege positioned in the shaping of the identity of Argentinean society since colonization times. Evangelization was largely supported by a colonial educational system, which was initially established in 1615 through the foundation of the first primary school in Argentina; this school was administered by Jesuits. Shortly after, numerous Catholic colleges in Argentina were opened –this happened 273 years before the installment of laic education in Argentina. In Uruguay, on the other hand, there was only one Catholic college and very few primary schools at the end of the XVIII century –and less than a century after, the effective partial secularization of education in Uruguay was introduced. This led to a very weak stance of the Catholic Church in Uruguayan education –which derived in a lack of religious education in the territory–, while the Argentina educational system was indeed fully administered by the Catholic Church for nearly three centuries –which in turn gave the Church the opportunity to unite the religious identity to the geographical one from a very early stage, and through a very effective model. The influence that this had in the formation of the Argentinean identity can be assessed by looking at the number of Catholic believers in the country in modern times: nearly 63% of Argentineans identify as Catholic today. In contrast, only 38% of Uruguayans profess Catholicism (Ecos, 2019). It is not the scope of this study, but the influence that education and its content can have the development of a society and its identity is largely understood in the social sciences.

Another event for which assessing its timing is crucial is the influx of European immigration in both territories. The massive influx of European immigrants began in Uruguay in 1835, while in Argentina this process only started nearly 50 years later. Montevideo was home to a remarkably large international community with liberal backgrounds –the city was also not densely populated when the massive immigration influx happened, so it was easier for immigrants to influence the local environment. The French and the English in particular held positions of influence and research and technological advancement, and they contributed to the strengthening of a largely liberal society –a society that had already liberal roots due to the weakness of the Church and the size of the population when the Spanish first settled there. In contrast, the influx of immigrants in

Argentina came at a time when Argentinean society had already built its identity upon Catholicism, and it was naturally more difficult to influence it.

In sum and according the importance of timing and sequence in assessing the influence of events on modern realities, both States started in similar conditions, but the timing of events influenced the divergence of paths. The early foundation of Buenos Aires and its larger population led to the instauration of a stronger Catholic Church that played an important role in identity-building and homogenization of society through the administration of public education. Additionally, the Church was subject to the Royal Patronage order, which established a clear link between the government and Catholic authorities in the territory. This all influenced the building of a society that still largely identifies as Catholic. The experience of Uruguay, on the other hand, is characterized by the late foundation of its capital city, an underdeveloped colonial Church that depended on the Argentinean authorities, the influence of liberal thought brought on by an early immigration influx, and a weak stance of the Church in the educational system –this all derived in the lack of official religious upbringing in Uruguayan society and identity.

6.2 Increasing Returns Dynamics and Path-Dependency: Actors’ Assessment on the Benefits of an Interdependent or Independent Relationship

As shown in the results section, after Argentinean independence in 1816, the Nation’s first Constitution (1853) was drafted by men who had a religious upbringing –as expected due to the nature of the Argentinean education– and who were concerned about how to integrate the Catholic Church and Catholicism into the new States’ laws. As discussed by Esquivel, Catholicism became a unifying force in the formation of a cultural identity beyond Spanish rule. Catholicism, at this point, had been installed so strongly in the collective consciousness that it was one of the most powerful commonalities amongst society in their search for a sense of belonging. The Constitution that resulted of this process established a very clear link between the State and the Church, starting with the still-valid Article 2 – “The Federal government sustains the Catholic Apostolic Roman cult” –, to the transfer of the Patronage from the Crown to the national government (which ended in the 1960s), to the requirement for the President to be a Catholic and the explicit evangelization law for indigenous populations –both removed in the 1990s. On

83 the other hand, Uruguay became a fully secular State in 1919 with the reform of its Constitution’s Article 5 –“All religious cults are free in Uruguay. The State does not sustain any religion”.

This clearly shows the divergent paths that were taken in both States; Argentina still officially sustains the Catholic cult, whatever that may mean, while Uruguay broke all ties with the Church more than a century ago. As indicated by da Costa, after independence in the 1820s Uruguayan political elites sought to craft a State composed by a “unique National being” that would keep its religious life completely private –they were able to create such a being because Catholicism was never a source of identity, their education was not largely controlled by the Church, the Church was so weak that despite putting up a fight the State was able to conquer all spaces that had belonged to the Church at one point (such as the civil registry or the names of public holidays), and the government did not make use of the Church to legitimize and support their position. It is no wonder that Uruguay was capable to successfully divide religion from public affairs in the early XX century; and this has not been the case in Argentina to this date.

Argentina has indeed reached a degree of secularization (albeit, quite slowly) when comparing the original Constitution of 1853 to today’s regulations. However, it is clear that the origin of the path has been stronger; the Catholic Church played an important role in the formation of the Argentinean identity and the colonization process, the 1853 Constitution is an example of this, and to this date the most explicit Constitutional link between the State and the Church (Article 2) is still valid –in fact, the Argentinean government still allocates substantial financial support to the Church based on this provision. Uruguay, on the other hand, has not provided any type of subsidy to any religious institution since 1919.

Uruguayan political elites actually strove to impose an early division between the Church and the State; they went into an open confrontation with the Church when they began conquering the Church’s spaces in the 1860s, as described by da Costa. In contrast, political elites in Argentina have been tightly linked to the Church since the colony due to the effective usage of the Royal Patronage and a strong evangelization system –this was, as discussed, transferred into the modern Argentinean State. Spanish authorities and the Church were partners during the colonial times in the construction of a Catholic identity, and this partnership has carried on –although with

84 a new structure. Furthermore, the Catholic identity that the Spaniards and the Church built in the territory served as a unifying factor when Argentina became independent –this factor was actively protected, enforced and promoted to avoid conflict.

It could be said that through these mechanisms one can see the thread of increasing returns dynamics: once the original paths were set-out (in the case of Argentina, one where the Catholic Church and the government partnered in order to create a common identity and strengthen the Spanish rule; and in the case of Uruguay, one where the Church was weak and identity had liberal underpinnings), all actors went through a learning process in which they realized the benefits of the path they were on:

- In Argentina, the Church served as an actor that helped legitimize the government –in a territory where Catholicism was deeply linked to a community’s identity, a government that did not include the protection and promotion of this identity would have had a hard time gathering support in the disturbance that follows independence–, which incentivized political authorities to continue following the established path in order to continue profiting from the influential role of the Church (as previously stated, education in Argentina had a Catholic nature until 1888 –72 years after Argentinean independence). Moreover, the Catholic Church is to this date highly influential in Argentinean elections, as discussed by Esquivel, which has a direct impact on the implementation of public policy at local levels. It could be inferred that Argentinean authorities have learned of the benefits that their relationship with the Church can bring when it comes to political support and legitimization of a government in a country that was built upon a largely Catholic identity; and this, according to increasing returns, has prompted them to continue taking steps on the same path. The Church, for its part, has derived plenty of benefits from its relationship with the State throughout history such as subsidies for religious schools, salaries, influence on public policy matters57, or the issuance of diplomatic passports. It could be stated, as well, that

57 As explored in Esquivel’s research, 75% of the interviewed Congress Members admitted to have met with religious leaders within the past year to consult them on questions regarding sexual education and other matters. 85

the Church has also undergone a learning process in which they have realized the financial and influential benefits that have resulted from this link. - In the case of Uruguay, it could be inferred that the government was able to achieve the separation of the State and the Church relatively early due to the rapid conquering of spaces that had previously belonged to the Church’s administration. The fact that the Church did not have particular strength and that, despite their attempts at confronting the government, they did not stand a chance against a State that became stronger and stronger, facilitated even more the advances of the government. As put forward by da Costa, the State took the place of “mystic” that had been previously occupied by the Church to an extent (“mesocracy”). Political elites understood that they did not have a strong competitor in the Church, so after taking the initial steps and realizing that more could be taken quite easily, they stayed on that path of increasing returns –conquering more and more spaces until they were absolutely free from the Church’s interference in public affairs. To this day, politicians and legislators do not make decisions influenced by the Church’s opinion because their legitimacy is not underlined by the Church’s support –unlike the case of Argentina. They have remained on a path that benefits them greatly and that ensures their autonomy. The Church, for its part, after having lost this confrontation with the political sphere, has also enjoyed a complete degree of self-rule that does not bind it to the demands, whims, or financial support of political elites. As stated by da Costa, the Church’s legitimacy stems from society itself and does not depend on the government. They, too, have benefited from the resulting path.

One can see here two diverging routes that emerged despite having had similar starting points, but the timing, nature and sequence of events led them to different sociopolitical outcomes. In one path, it is possible to see a mutually-supportive, interdependent relationship; in the other, an independent relationship characterized by both parties’ autonomy and legitimacy in their own spheres. All actors saw a positive feedback path from the beginning and decided to stay on that road –changing paths would be too costly, and this cost increases overtime. In short, they learned

86 that there were benefits to be reaped, and they learned how to continue to capitalize on the path taken.

In the case of Argentina, both the Church and the government would have to engage in new learning and coordination processes if they chose an alternative (that of an official separation between both sectors), which would be expensive; the Church would lose the State’s financial support and its influence power on matters such as family and sexuality; and the State would lose the legitimization tool it sees in the Church (which also serves electoral purposes), and decision makers would have to adhere to a new modus operandi. In the case of Uruguay, if the path of interdependence was to be chosen, the State would have to accept the influence of the Church in decision-making, and the Church would benefit from state support but would perhaps have to bind itself, to a certain extent, to the demands of the State.

As explained by Pierson, each starting point may have several outcomes, and the path chosen may not be the most effective one out of all the possible outcomes, but the increasing returns dynamics incentivize actors to remain on this path as benefits increase –the benefits of autonomy or of mutual support–, as well as the cost of the alternative. This creates self-fulfilling expectations because the further they go down a path, the more benefits they will enjoy. Their positions become locked-in and creates change-resistant attitudes –and each move down a certain path will reinforce this mechanism.

An example of how one can note the nature of the State-Church relations in Argentina and Uruguay in more modern times can be found in the different roles the Church played in both countries’ military regimes in the 70s and 80s. In Argentina, the Church served a role of legitimization, and they were also profiting from the regime. In Uruguay, the Church was a confronting force, providing aid and support for dissidents and even organizing pro-democracy discussions themselves –this was only able to happen because they are, as stated before, not dependent on the State. In this example one can also assess a sort of coordination effect; most actors have joined the taken path because they have seen the benefits it can derive. In Argentina, only a very small number of Church authorities protested against the human rights violations conducted by the regime –and the murder of one of them did obviously not stimulate further

87 complaints. Lastly, these events could be regarded as reinforcing events as they strengthened the autonomy of the Church in Uruguay through the Church’s confrontational stance and they nourished the interdependent relation between the Argentinean State and the Argentinean episcopate.

6.3 Both Countries’ Relationship with the Church: Implications in Voluntary Pregnancy Termination Laws

Both the Argentinean Church and its Uruguayan counterpart have, in multiple occasions, declared their discontent with the proposal or passing of voluntary pregnancy termination laws. From threats of excommunication made by both Churches and massive “pro-life” Masses in Argentina (DW, 2020), to the Uruguayan Church formally asking followers to seek the derogation of the 2012 voluntary pregnancy termination law through any means they would deem opportune58 (Los Obispos de Uruguay, 2012), the Catholic Church has tried to exercise pressure and influence on both countries’ public policy on the matter59. As discussed, the Argentinean independent State was largely built on the common sense of belonging, which was enforced through the Catholic identity built during colonialist evangelization through a considerable Catholic-run education system. For its part, Uruguay built a more liberal identity that resulted from the mechanisms previously explored. These mechanisms, in turn, have influenced the way decision making at the legislative and policy-implementation levels happen –they have created institutions with certain learning and coordination effects embedded.

The Argentinean State is tightly linked to the Church through its Article 2 and beyond; it still allocates financial support to the Church and decision-makers are markedly influenced by the Church’s opinion on sexuality and family (as researched by Esquivel). Furthermore, the Church can play an important role in supporting politicians in electoral process in a society that, despite becoming less and less religious with time, still holds a majorly Catholic identity. This is the result

58 The Uruguayan Church also exhorted believers to attend a round of voting that would determine if the voluntary pregnancy termination law was to be subjected to a referendum on its possible removal. However, only 9% of the electorate voted in the pre-referendum and the initiative did not reach the following stage (Montevideo, 2019). 59 A number of Argentinean Senators have also confirmed that there has been constant lobbying by the Catholic Church in the legislative branch on the matter of abortion (Pardo, 2018). 88 of the original event that introduced the Catholic Church in the territory, a Church that became highly powerful and influential and that has served as a legitimizing force for the State, as well as the reinforcing events that might have happened after and the increasing returns dynamics of the taken path. This has resulted in institutions that have privileged the Catholic Church throughout history, along with its stance on public policy matters regarding sexuality –such as women’s abortion rights.

As discussed before, choosing an alternative path now may be too costly because it would require a new wave of coordination and learning effects. Therefore, the current Argentinean institutions have proven to be quite change-resistant as, despite the several attempts at abortion legalization and strong support from a large part of society, they have failed to respond to this particular demand from society. Actors in politics do not generally think of long-run effects or the benefits that they could eventually receive from changing paths and they keep to limited time horizons – this is because of electoral cycles having a short or medium-term nature. Therefore, they tend to stick to the choices and decisions that they know will be beneficial in the short term (in this case, maintaining the Church as an ally) as opposed to venturing towards an unpredictable route.

As proposed by Esquivel, the Argentinean laicicity is characterized by a State that has indeed conquered autonomous spaces and has given recognition to a number of civil rights –such as same-sex marriage–, but it also suffers from the Church’s influence in decision-making and implementation of policies (Esquivel calls this “subsidiary lacism”). As he puts it, the expansion of civil rights has more to do with legislators’ response to citizens’ demands rather than an increasingly laic political culture. Abortion, in particular, has been a highly contentious topic in all of Latin American societies and States, and the Church has always taken an openly confrontational stance in this matter. Additionally, the Argentinean State has not fully declared independence from the influence of the Church, and its repeated reluctance to pass voluntary pregnancy termination projects shows this –as stated before, Congress Members have shown to be influenced by the Church’s opinions on reproductive rights.

For its part, the Uruguayan State was able to claim itself free from the Church’s influence early on and this has derived in the conquering of a high number of civil rights that advocate for equality

89 and freedom of choice, as discussed before. Uruguayan legislators have been able to respond to citizens’ demands on an autonomous level, and they have done so in a considerably effectively manner –one could argue that Uruguay’s voluntary abortion law still holds various points that should be addressed in order to fully respect women’s freedom, such as its requirement for requesters to undergo a reflection period and a consultation with a board of “experts”. Neither the Church nor the State are linked to the other –they have never derived substantial benefits from a closer relationship–, and therefore they are free from each other. Even when ex-President Tabaré vetoed the 2008 law project, he did not do so under religious objections.

Both States have taken divergent paths in their relationship with the Catholic Church and this is due to the timing and sequence of events, along with the benefits that all actors have harvested from the paths taken. This, in turn, has resulted in different social realities in present days, particularly when it comes to women’s reproductive rights and the conquering of equality. More specifically, these divergent paths have had a part in the setting of either considerably restrictive or more liberal regulations on the matter of voluntary abortion in Argentina and Uruguay, as explored in this work’s law literature review and its contrasting exercise. In one setting, women are pushed to the criminalization of a choice that they will most likely make regardless of its legal status, which puts their health and life at risk –especially if they do not have the means to pay for a higher-quality treatment or travel abroad. This has continued to be the case despite several attempts pushed forward with the aim of legalizing voluntary pregnancy termination. In the other setting, women are ensured a much safer environment –since the passing of ordinance 369/04 and Law N° 18987, there have only been up to 2 deaths from abortion complications in Uruguay60 (Quian, n.d.), and this number has reached 0 in the last few years (Uruguay Presidencia, 2018) –, which despite not being completely free and having faced well-founded criticism, furnishes a more positive reproductive health for women.

7. Conclusion

Abortion as a voluntary choice regardless of cause and in a decriminalized, safe environment is limited to a very small number of women in Latin America –this is due to restrictive national laws

60 Between 1999 and 2004, there were up to 9 deaths per year as a result of abortion (Quian, n.d.). 90 and tight financial resources. In Argentina, a State that so far has not decriminalized or legalized voluntary abortion except for the cases of rape and health threat, every year there are around 53,000 hospitalizations in public clinics due to abortion complications. Argentinean women are often pushed to seek clandestine abortions in unhygienic clinics, putting their health and lives at risk –this has established abortion complications as the top cause of maternal mortality in the country.

Despite there being strong support for the legalization of voluntary pregnancy termination in Argentina and the obvious need to address the health risks, all eight bill proposals that have been put forward to the Argentinean Congress to this date have been rejected –including one that was discussed in 2018 and which was approved by the Lower Chamber but later rejected by the Senate (an achievement that no other proposal had reached until that point). This work sought to uncover historical events, contexts, laws and actors that may have influenced such precarious conditions –more specifically, those related to the historical link that the Catholic Church and the Argentinean State have developed. This relationship was made official in independent Argentina since the promulgation the country’s first constitution in 1853, and despite several reforms that have secularized the State more and more, it is still legally established through the current Constitution’s Article 2: “The Federal government sustains the Catholic Apostolic Roman cult”.

In order to illustrate this State-Church relationship further and its role on women’s reproductive rights, a comparative study with Uruguay –a country that legalized termination in 2012 and which separated State and religion early on– was made. In other words, the main objective of this work was to review some of the differentiated events related to the relationship State-Church that have led to divergent historical paths in two States with similar backgrounds –mainly colonization and evangelization– and the influence these paths have had in the furnishing of different social outcomes for women who seek to terminate a pregnancy; one being more restrictive and unequal, and the other being safer and healthier. This contrast was explored through an analytical procedure based on Paul Pierson’s increasing-returns-based path-dependency theory.

Pierson’s path dependency theory stems from the understanding that the history of events, particularly their timing and sequence, are highly influential in the development of institutions by

91 turning them change-resistant through the dynamics of increasing returns. Increasing returns happen when a critical event has led actors, accidentally or not, to take a unique path from which they reap benefits that increase overtime. This, in turn, rises the cost of changing to an alternative route. Additionally, subsequent events may act as reinforcing moments that fulfill expectations. Lastly, political institutions are singularly vulnerable to these mechanisms due to political actors’ limited-time horizons; politicians are mostly preoccupied with securing their supporters’ preference, and for this they rather focus on immediate gains as opposed to the long-term unpredictable results that a change of path may bring.

In order to frame historical events in both States through Pierson’s eye, this research focused on the difference in timing and sequence of happenings such as evangelization, colonization and massive European immigration influx in both countries. In the case of Argentina, it was found that the early foundation of Buenos Aires, the important role the Church played in evangelization and identity-building efforts –which later had an impact on society’s sense of unity during and after the independence movement–, the effective link between the government and the Church through the Royal Patronage, and the late European immigration all played a role in the construction of tight relationships between the Church and the State. This can be demonstrated by the fact that Argentina has to this day not removed its Constitution’s Article 2, and that it was quite slow to derogate other regulations that enforced this connection –for example, the Patronage remained well until the 1960s and the President was required by law to profess Catholicism up until 1994. Moreover, as demonstrated by Juan Cruz Esquivel’s research on Congress Members’ sentiments towards the influence of religion in their decision making, legislators have shown to pay especial attention to the Church’s opinion on sexuality and family.

For its part, Uruguayan society has been built on a much more liberal identity since early days. This has been the result of some of the following main events: the tardy foundation of Montevideo and the nearly empty territory in which the Spaniards settled –this contributed to the establishment of a weak Church that did not develop a muscular evangelization system; the early influx of European immigrants who further impacted the development of what has been regarded the “most liberal Latin American society”; the slow development of the Uruguayan Church; an ineffective Royal Patronage; and the confrontational relationship between the State

92 and the Church after independence, particularly after the 1860s. This all facilitated the early legal separation of the Church and the State in 1919 when it was established through the Uruguayan Constitution’s Article 5 that “the State does not sustain any religion”.

In addition, this work also engaged in the research of a particular period in time that clearly showed the difference in the characteristics of both States’ relations with the Church, and which may have also acted as a reinforcing event: Uruguay’s and Argentina’s military dictatorships during the 1970s and 1980s. The largest discrepancy found during this time was the supporting role that the Church played in the Argentinean case vis-à-vis the Uruguayan Church’s place in the resistance.

When framing this research’s results through the increasing-returns approach to path- dependency theory, it could be said that actors in both countries have found paths that benefit them and which have increased the cost of alternative choices. In Argentina, the Church has been utilized as an identity-building tool that facilitated a common sense of belonging, which had a role to play in the building of the modern State after independence; it has also served a legitimizing and electoral purpose. It follows that the Argentinean government may be hesitant to enact and implement sexually liberal policies because they might lose the support of the Church, and they tend to consider limited-time horizons rather than the possibility of long-term benefits.

On the other hand, Uruguay has had a much easier path towards the official and effective separation of the State and the Church. The Catholic Church was never particularly strong during colonial times, so it was quite simple for the government to conquer the spaces that had previously belonged to the Catholics. The State became stronger and stronger, and the continuation of this path led to the early secularization of Uruguay. After producing a completely autonomous political apparatus, the passing and implementation of liberal laws has not been marginalized to religious debates, which has made their sanctioning more straightforward.

In conclusion and as a response to this work´s leading question, it can be stated that the close relationship between the Church and the Argentinean State has affected women’s abortion rights in the country by developing change-resistant institutions as explored through Paul Pierson’s increasing-returns-based path-dependency theory in Chapter 6. This also becomes clearer when

93 contrasting the Argentinean case with that of Uruguay, where diverging timing and sequence of events have shaped a different, much looser relationship between the State and the Catholic Church in Uruguay –this has helped establish more liberal abortion rights in comparison to Argentina’s more restrictive counterparts.

It follows that the relations that can be historically formed between the Catholic Church and the State may have a robust influence on women’s freedom and reproductive rights (and in consequence, their health). In this case, the more autonomous State has been able to respond more rapidly to citizens’ demands.

It must be highlighted that this study concentrated solely on the Argentinean and Uruguayan experiences and conducted a situated analysis. It does not seek to provide a general understanding at a macro level; there can be found cases of Sates that have had close connections with Catholicism and have liberalized abortion, such as Ireland. Indeed, Paul Pierson makes it a point to remark that path-dependency theory does not claim that change is not at all possible, but rather that it may need a disruptive event for it to happen. Perhaps a future line of research could include the studying of the events that have led to the legalization of abortion in largely Catholic countries, as this could provide some insight into what may be required to furnish more fair environments for women in Latin America.

Lastly, it should be said that there are plenty of academic works that have focused on both countries’ relations with the Church and the events that have led to them, but this research sought to compare both settings back-to-back and engage in a gender-sensitive approach through Pierson’s take on path-dependency theory. The goal was to contribute to the debate surrounding the conquering of equality in a continent that has historically undermined women and pinpoint the State as a guarantor of rights, an entity that should answer to society’s needs and promote conditions in which women can lead a satisfactory and healthy sexual life. Latin women have been fighting their way towards equality for decades, and in it is about time that Latin American governments rose to the occasion.

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List of Annexes

Annex 1: Visual map of different abortion laws across Latin American countries as of July, 2020

Annex 2: Translation Spanish-English of the current Penal Code (1984) articles guiding pregnancy termination in Argentina.

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Annexes

Annex 1 Visual map of different abortion laws across Latin American countries as of July, 2020.

VOLUNTARY PREGNANCY TERMINATION LAWS IN LATAM Legal in case of:

Country Legal Illegal Life threat Rape Incest Fetus inviability Argentina Bolivia Brazil Chile Colombia Costa Rica Cuba Ecuador El Salvador Guatemala Honduras Mexico CDMX+Oaxaca Nicaragua Panama Paraguay Peru Uruguay Venezuela

Reference:

El mapa del aborto en América Latina: cómo cambia la normativa según el país. (May 28, 2019). Todo Noticias. Retreived from: https://tn.com.ar/internacional/el-mapa-del-aborto-en- america-latina-como-cambia-la-normativa-segun-el-pais_965905

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Annex 2

Translation Spanish-English of the current Penal Code (1984) articles guiding pregnancy termination in Argentina61.

ARTICLE 85: Who causes an abortion will be penalized with:

1. Imprisonment of three to ten years, if they act without the agreement of the woman. This punishment could be elevated to up to fifteen years if the act is followed by the woman’s death. 2. Imprisonment of one to four years, if they act in agreement with the woman.

The maximum punishment will be elevated to six years if the act is followed by the woman’s death.

ARTICLE 86: Doctors, surgeons, midwifes and pharmacists who abuse their art or science to cause or cooperate in the performance of an abortion will incur the same penalties established in the previous article and will suffer, in addition, the disqualification from their profession for double the time of that of the conviction.

The abortion practiced by a licensed doctor in the agreement of the pregnant woman is not punishable:

1. If it has been done with the purpose of avoiding danger to the mother’s life or health and if this danger cannot be avoided by other means. 2. If the pregnancy is the result of rape or an assault on the modesty of an idiotic or demented woman. In this case, the agreement of her legal representative will be required for the abortion.

ARTICLE 87: Whoever causes an abortion through violence without having had the intention of causing it will be punished with prison time of six months to two years if the patient’s pregnancy had been notorious or known by the perpetrator.

61 This translation has been done by this work’s author. 106

ARTICLE 88: The woman who causes her own abortion or is in agreement with whoever causes it will be subject to one to four years of imprisonment. The attempt of a woman is not punishable.

Reference:

Código Penal de la Nación Argentina. (1984). Ministerio de Justicia y los Derechos Humanos. Retrieved from http://servicios.infoleg.gob.ar/infolegInternet/anexos/15000- 19999/16546/texact.htm#15

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