Abortion: Between Religiosity and the State

María Isabel Carrascosa

Universidad Francisco Marroquin

There is an intimate relationship between religion and the exercise of women’s sexual and reproductive rights. Because of this, changes in religious culture may imply changes in the structuring of rights. It would appear that more widespread religiosity would beget more legislation in opposition to sexual and reproductive rights; and conversely, a lower prevalence of religion would bring about more sexual and reproductive rights. Abortion in Latin America would seem to confirm this; the region is divided in two. On one hand, there are states set on the decriminalization of abortion and on materializing equal rights for men and women over their bodies; on the other, there are states who would stiffen penalties for abortion and make a constitutional issue out of conception theory. 

A recent article by The Economist argues that Latin America is undergoing a process of secularization, and that is currently the case in countries such as Argentina, Mexico and Colombia. In these countries, the number of people who subscribe to Catholicism has diminished as the number of those that identify with no religion has increased. In these three countries, abortion has been legalized in recent years, adding to the ranks of Uruguay, Cuba, Guyana, French Guyana, and Puerto Rico. Other South American countries, such as Chile and Ecuador, have expanded exceptions to include rape or inviability of the fetus, and have also registered changes in religious affiliation. 

Practice in Central America and the Caribbean, however, represents an exception to the tendency towards secularization and its subsequent impact on legislation related to sexual and reproductive rights. El Salvador, Nicaragua, Honduras, Haiti, and the Dominican Republic are on the list of countries that have a complete ban on abortion. Guatemala allows for it only in cases where the mother's life is in peril, and Costa Rica only in cases of danger to the physical or mental health of the mother. In these countries, we find increases rather than decreases in the numbers of Protestant or evangelical communities. Churches' credibility among parishioners ranges between 71 and 74 percent.

During the last two decades, these countries have promoted and enacted legislation that: a) eliminates the possibility of performing abortions, even in cases of threat to the mother’s life or well-being; and/or

b) expands the penalties related to abortions. Discussions on permitting abortions up to a certain week or about expanding exceptions to the prohibition in cases of underage pregnancies, incest, rape, morning after pills, etc. are impossible. Even more so, in these countries, there have even been recorded cases of spontaneous abortions being criminalized. 

The defense of the embryo is based on the acknowledgement of legal personality from the moment of conception, a formula that has been constitutionalized as an absolute right, and which in many forums appears not to have any exceptions. The cases of El Salvador and the Dominican Republic are interesting because both protect life from the moment of conception and mandate an absolute proscription of abortion.

It has been politically impossible in the Dominican Republic to pass a new criminal code owing to the controversy surrounding abortions, where religious groups have insisted on excluding all grounds for exception. The current criminal code dates from 1884 and was updated in 2007. It does not allow for any exceptions to the ban on abortion. The new code has already passed through Congress, the Senate, the Executive Branch, and the Constitutional Tribunal without achieving consensus and generating ample controversy. The proposed code included three exceptions: if the woman or girl's life is endangered, if the pregnancy is the result of rape or incest, or if the fetus exhibits conditions that are severely incompatible with life outside the womb.

El Salvador’s constitution also recognizes legal personality from the moment of conception, as a result of a reform to the constitution in 1998. Although the previous criminal code did contain exceptions, the current text completely prohibits abortions. El Salvador was found to be in breach of human rights  last year by the Inter-American Court of Human Rights (I/A Court H.R) in the case of Manuela y otros vs. El Salvador. Early in January 2022, the Inter-American Commission on Human Rights (IACHR) filed a new case against El Salvador related to the absolute ban on abortion. President Bukele has referred to abortion as mass genocide.

The most recent regional controversy concerning abortion happened in Guatemala. In 2022 the Guatemalan Congress approved two highly controversial laws. Decree 9-2022 dedicated the date of March 9th to "Life and Family" and originally contained a complete proscription on abortion which later had to be amended to fit in with the rest of the Guatemalan legal system which does enable therapeutic abortions. On March 8th (International Woman´s Day), decree 22-2022 was passed, a piece of legislation that increased penalties for abortion and prohibited same-sex marriage on the grounds that Christian morality needed to be guarded. It generated such a controversy that it ended up being tabled by Congress, meaning it could not be put into effect.

Legislative proposals prohibiting or criminalizing abortion in Central American and the Caribbean have been promoted by religious groups. These laws have moralistic and religious content that denote a regression in the secularization of these states. These developing countries will not be able to improve maternal mortality rates and create better health systems if they continue to undermine women’s reproductive rights with this kind of legislation. Moreover, rural and underprivileged women are facing greater limitations to control their bodies. Reproductive rights are essentially human rights and the denial of such rights to women result in undermining liberty. 

María Isabel Carrascosa is Professor of Law at Universidad Francisco Marroquin 

Suggested Citation: María Isabel Carrascosa, ‘Abortion: Between Religiosity and the State’ IACL-AIDC Blog (15 September 2022) https://blog-iacl-aidc.org/central-america/2022/9/15/abortion-between-religiosity-and-the-state.