Manuela Lavinas Picq
This past Thursday, February 17, Ecuador approved the law on voluntary termination of pregnancy in cases of rape. This new law is a great victory in a deeply conservative country that until recently criminalized abortion (except in cases of rape of mentally handicapped persons and danger of death of the mother). But this new law also sparked protest from women’s groups who staged artistic performances outside the Assembly while the vote was being taken, shouting their Ecuadorian version of the Chilean feminist anthem by Las Tesis:
“the assembly is a judge/
that does not listen to our voice/
and our punishment/
to give birth to the rapist’s child”.
This law is a victory for regulating the right to abortion due to rape, even allowing survivors to avoid police procedures, but advocates of decriminalization contested exclusionary aspects that will affect the most vulnerable. The dark side of the law? The deadlines. Why so much disappointment? Because on April 28, 2021, after years of feminist struggle and 7 unconstitutionality lawsuits filed by several women’s organizations and the Ombudsman’s Office, the Constitutional Court of Ecuador issued a historic ruling declaring the decriminalization of abortion in cases of rape, and, therefore, entrusting the Assembly with the creation of a law that regulates abortion for rape applying the highest human rights standards.
The new law has strengths, but its weakness is the time limits that limit access to the right it seeks to guarantee. What is most worrisome is that these time limits are about to be reduced even further.
When the Constitutional Court issued its ruling decriminalizing abortion in cases of rape in April 2021, the recently elected and not yet inaugurated president Guillermo Lasso, a banker and member of Opus Dei, declared his “total respect” for the Court’s ruling and promised to respect democracy and the “separation of powers” despite his “different beliefs”. But months later, Lasso announced he would veto the rape abortion law, ignoring the Constitutional Court’s authority and using his pro-life activist wife as a channel to express anti-rights ideologies.
President Lasso began to exert influence and pressure, in part through various alliances, including with Guadalupe Llori, the Pachakutik Assemblywoman who presides over the Assembly. First, the Legislative Assembly delayed the debate of a bill well beyond the 6 months granted by the Court. Second, allied Assembly members such as Esteban Torres of the Social Christian Party were active against the bill. Ironically, it was Pachakutik Assemblyman Ricardo Vanegas who presented a second bill, so regressive against women that it contained 17 unconstitutionalities, in order to prevent the majority bill from passing, allowing his minority bill to come to a vote.
The vote on the bill did not follow party lines. Among the 75 votes in favor were several assembly members from the conservative right, including Lasso’s party, while a large part of the left voted against. Ironically, the two leftist parties that campaigned for a pro-abortion presidential campaign in 2021, Pachakutik and Izquierda Democrática, had several members who voted against or abstained. In the Correista party, the sister of former president Rafael Correa and head of the bloc Pierina Correa voted against, but left her assembly members free, thus dividing the votes against and in favor.
The vote also did not follow gender lines, with almost half of the 41 votes against and 14 abstentions from women assembly members, many elected by leftist parties. For example, pro-life legislator Sofia Espin, of the Justice Commission, voted against the law, invoking article 45 of the Constitution which defends life from conception. Only there, in the vote on the law, two myths fall: the myth that the left advances policies in favor of women’s rights and the myth that women elected to political office automatically support policies that benefit women.
The power and pitfalls of the law
Virginia Gómez de La Torre, director of Fundación Desafío, values the various feminist achievements that are in the law, in particular that rape survivors do not have to file a complaint to be able to access abortion for rape and that in the case of girls they are the ones who decide of their full consent without guardianship. Another important achievement was to define conscientious objection as an individual right of physicians, and not an institutional one, so that a physician can object, but not an institution or medical center. The law also takes into account sexual diversity, referring to “pregnant women”, and recognizes how intersectionality affects women’s lives, recognizing different deadlines for people under and over 18 years of age, rural and urban, mestizos and people of different nationalities.
The knot is in the deadlines.
The initial report presented by the Ombudsman’s Office in 2021 did not consider time limits; the bill debated in January 2022 considered a time limit of 22 weeks for persons under 18 years of age, of peoples/nationalities and 20 weeks for persons over 18 years of age in urban areas. When the bill came up for a vote on February 17, 2022, the stipulated 16 weeks was reduced to 14 and then 12 weeks to obtain a favorable vote which was critical to prevent the minority bill introduced by anti-rights Assemblyman Vanegas from passing. The agreed deadlines are 12 and 18 weeks respectively, due to the lack of political support in the Assembly.
Now comes President Lasso’s intervention: the Assembly sends the law to the president who has 30 days to approve-or veto-it in whole or in part. Lasso has already reiterated his intention to veto the law arguing that it “respects life from conception”. Most likely he will now veto the law imposing even shorter deadlines, thus sending the law back for further debate in the Assembly, creating more back-and-forth between the legislature and the executive in the coming months.
In other words, not only does the law come with limits, but it is not even guaranteed yet.
For now, the decriminalization of abortion for rape is law since the Court issued its ruling in April 2021; what is at stake is to create a law to regulate this new one, which could become a long battle in itself.
Cristina Cachaguay, feminist and national president of Mujeres por el Cambio, confronted the legislators during her intervention in the Assembly, reminding them that in the last year alone, while they delayed the creation of a law, more than 3 thousand girls between 8 and 13 years old became mothers as a result of sexual violence and 95% of the aggressors lived in their own homes (official data from the Ministry of Health). Abortion is not an option, she says, it is a decision made in circumstances of subjugation; that is why the Inter-American Court of Human Rights declared that forcing a raped woman to become a mother is torture.
Feminists have insisted that the requirements should be minimal, without the need for a police report so as not to re-victimize rape survivors; this was achieved. The issue of the time limit became the central axis of debate. The feminist organization Surkuna recognizes the positive aspects of the law, but insists that the law imposes highly restrictive deadlines that will leave the most vulnerable without access. Based on the accompaniment they have provided to survivors in the last year, Surkuna estimates that the current time limits will prevent 43% of women over 18 years of age and about 80% of girls, adolescents and women of indigenous peoples and nationalities from accessing the right to voluntary termination of pregnancy in cases of rape.
It is outrageous but not surprising that the Assembly disrespects the dignity of girls, adolescents and women. What is surprising and serious is that the Assembly does not comply with the mandate established by the Constitutional Court itself, which mandated the creation of a law in accordance with the highest human rights standards. Feminist lawyer Lolo Miño, one of the complainants before the Constitutional Court, expressed her disappointment on Twitter, adding that this was the “opportunity to set a precedent where we get officials who do not obey constitutional rulings to be dismissed”.
While the Assembly and President Lasso circling the law, the Constitutional Court ruling remains in force and women can access abortion for rape since it was decriminalized in April 2021. Women’s and feminist groups do not celebrate, but rather continue to fight, preparing for the possibility of filing more lawsuits to the Constitutional Court, now for non-compliance with the ruling. But the Constitutional Court of today is not the one of 2021; it has 3 new judges appointed by Lasso who are much more in line with the ideology of the president.
The law regulating abortion in cases of rape in Ecuador is uphill, but the glass is half full. And if one thing is clear, it is that we will not go back to the underground.
The author is a professor at Universidad San Francisco de Quito (Ecuador) & Amherst College (USA).