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From the Strategy of Decriminalization to the Expansion of Exceptionality: the Story of How We Lost the Possibility of Decriminalizing Abortion in Bolivia

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From the Strategy of Decriminalization to the Expansion of Exceptionality: the Story of How We Lost the Possibility of Decriminalizing Abortion in Bolivia november 2018 No 1 From the strategy of decriminalization to the expansion of exceptionality: the story of how we lost the possibility of decriminalizing abortion in Bolivia M. Cecilia Chacón R. From the strategy of decriminalization to the expansion of exceptionality: the story of how we lost the possibility of decriminalizing abortion in Bolivia 1 The other day, I was told to hold my tongue, to temper my actions; I was told that it was ok to criticize, to accuse, and to disagree, but quietly, only talking amongst ourselves... I was told to wait, I was told that the social movement, that any social movement, has plans for women, but that I should wait, told that our time hasn’t come yet. ... This I was told by someone who calls herself a friend, and I asked her. But she has not gone to see the indig- enous person... She has not gone to see the day laborer, to tell him to wait, to be friendlier in his complaints with his employer. And she has not gone to see the peasant worker, to tell him to defend his land with kindness and a smile ... (Excerpts from the poem entitled I was told by Patricia K. Vergara S.1) Analysis document prepared by M. Cecilia Chacón R. for the Rosa Luxemburg Foundation. Cecilia is a feminist lawyer, specializing in international affairs, human rights and the environment. 1 Patricia Karina Vergara Sánchez is a Mexican feminist, journalist, and teacher. From the strategy of decriminalization to the expansion of exceptionality: the story of how we lost the possibility of decriminalizing abortion in Bolivia 2 A Strategic Failure Due to Tactical finally, the appeal for unconstitutionality Errors iled against Article 266 and other articles of the Criminal Code (2012). o understand the legislative proposal on abortion in the current Criminal Code,2 I The first of these three came up during the propose reviewing the recent history of our discussion of the Framework Law on Sexual fight so that criminalization of abortion does and Reproductive Rights,4 which, following not continue to be one of the three leading a vigorous discussion in the Congress, was causes of death of women in our country.3 unanimously passed. However, the issue could not overcome the Catholic Church’s Ignoring or not mentioning the efforts that campaign against it, which operated by T were made in the past, including both their collecting signatures that led then-president failures and small successes, serves only to Carlos Mesa to back down from signing the hide the struggles of those who came before bill into law, and send it back to Congress us, and gives us the false idea that we are for “further debate.” While the bill did always starting from scratch. Given their not specifically propose decriminalization contribution on this issue, and their impor- of abortion, it did recognize the right to tance to today’s struggles, I will focus on physical well-being and autonomy over the three recent milestones: the Framework Law control of one’s own body, as well as the on Sexual and Reproductive Rights (2004), obligations of health service workers. It also the Constituent Assembly (2007-2008), and provided guarantees and mechanisms to protect and defend such rights.5 2 Presented on December 13, 2016 in Santa Cruz, by Vice President Álvaro Garcia L. 4 The bill was drafted by the attorney Julieta Montaño and 3 According to a UNFPA report (2012), the main causes of presented by the Human Rights Commission of the Cham- death of women of reproductive age are: hemorrhage - ber of Representatives, and was passed in May 2004. 33%, infections - 17%, abortion - 9%, hypertension - 5% 5 http://www.bolivia.com/noticias/autonoticias/Detalle- and extended childbirth - 2%. Noticia21718.asp From the strategy of decriminalization to the expansion of exceptionality: the story of how we lost the possibility of decriminalizing abortion in Bolivia 3 The Constituent Assembly was the scene rather was far from being isolated by the of another battle6 between those promoting new political forces of the Bolivian left, find- the decriminalization of abortion and the ing conservatism to be surprisingly well-es- ultra-conservative political forces represent- tablished and active within their ranks. ing both the Church and society. This was another close brush with success in 2007, After nearly five years, and three since the when the Commission of Rights, Duties, new Constitution was passed, on March 13, and Guarantees issued a report stating that 2012, a new proposal came under attack. it would support the right to life starting at This time, it was an appeal for unconstitu- 9 conception.7 However, this decision did not tionality, which argued the incompatibility garner support in the Constituent Assem- between several articles in the 1972 Criminal bly discussion sessions. The dispute came Code with the international conventions and out as what could be described as a “tie,” treaties ratified by Bolivia, which are con- ending in the drafting of Art. 15 of today’s sidered under Bolivian law to have the same Constitution: “All people have the right to legal force as the Constitution. Such treaties life and physical, psychological, and sexual include the Convention on the Elimination integrity (...).8” of All Forms of Discrimination Against Women and the Inter-American Convention This incident demonstrated to women’s on the Prevention, Punishment and Eradica- organizations and pro-rights activists that tion of Violence against Women. conservatism had not been defeated, but 9 The initiative was proposed by Representative Patricia 6 http://cimacnoticias.com.mx/node/57530 Mancilla and IPAS (International Projects Assistance Ser- 7 http://www.coordinadoradelamujer.org.bo/web/index. vices), a non-governmental organization dedicated to eli- php/noticia/mostrar/id/9 minating avoidable deaths and disabilities attributable to 8 Article 15, paragraph I. of the Constitution, enacted on Fe- unsafe abortions. See: http://www.ipas.org/es-MX/Who- bruary 7, 2009. We-Are.aspx From the strategy of decriminalization to the expansion of exceptionality: the story of how we lost the possibility of decriminalizing abortion in Bolivia 4 The appeal for unconstitutionality sought to crimes, but in the cabinet, we will de- remove the legality of 13 articles contained bate (on) discussions underway in public in the Criminal Code. While the intention opinion, so that Bolivia, the cabinet, or the was for these efforts to pass under the radar, administration will have a position.” This the proposal ended up being made pub- statement reinforces the idea of abortion as lic, and took on the form of a plebiscite, a crime, and was enthusiastically supported when the Constitutional Court decided by the vice president and parliamentary to consult with a variety of organizations representatives, who did not hesitate to talk and jurists before making a decision about about “murder,” “agents,” and “imperialist decriminalization.10 This action opened up conspiracies,” as well as the intentions of two scenarios: one political and the other foreign NGOs to create infighting. There legal, establishing the conditions that we are was talk of “sin,” and it was even said that facing today in the debate on the Bolivian in the worldview of indigenous peoples, Criminal System Code. the Pachamama punishes abortions. Mean- while, several ministers, including Carlos On July 17, 2013, President Evo Morales Romero, Roberto Aguilar, Teresa Morales, stated: “I am no expert on the abortion and Amanda Dávila, all spoke out in favor issue; it needs to be debated. Of course, of beginning the debate to move towards in my understanding, all abortions are decriminalization. 10 Several organizations sent their contributions and the Pla- tform for the Defense of Life filed 50,000 signatures to the This made decriminalization of abortion Constitutional Court in Sucre to reject the action. Unfortu- an uncomfortable issue within the Socialist nately, the TCP, in its attempt to placate everyone, ended up with Judge Cusi declaring: “The idea is to make sure ever- Movement (MAS). The issue caused internal yone is happy with the decision, with no one coming out on confrontations, nd alike no other issue before, the losing end, which is rather complicated and difficult to achieve.” This reveals the true nature of the basis for the brought existing contradictions to light, until Court’s decision. From the strategy of decriminalization to the expansion of exceptionality: the story of how we lost the possibility of decriminalizing abortion in Bolivia 5 reaching the point that the issue was left on passed on February 5, 2014, denied wom- the sidelines, convincing the persons behind en the right to choose, rather moving to a the proposal and related organizations that it position of blaming and criminalizing those was not the right time, insisting that the strat- who have chosen to have an abortion: egy would be to make positions more flexible and wait for a better opportunity, such as the “...And therefore, it must be clar- Criminal Code Bill.11 ified that while the Constitution guarantees sexual and reproductive Those representing, on the one hand the rights, according to Art. 66, the law most progressive, and on the other, conser- in no way provides that repro- vative interests, were the parties most ex- ductive rights involve a volun- posed. Such parties included activists, pol- tary interruption of pregnan- iticians, and the media, but a clear message c y, and therefore, the exercise of was also sent to the Constitutional Court, sexual and reproductive rights does which, in addition to the claims by Vice not include the right to abortion” President García Linera, sealed the fate of (cited on page 9 of the ruling, sec- the legal action.
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