Abortion as empowerment: reproductive rights activism in a legally restricted context

Even as abortion law has remained unchanged in recent decades, feminist activism and new pharmaceutical technology have created opportunities for insider activists to expand access. Some of the material presented here as background is based on my research in Argentina, which is discussed in detail below in the Methods section. This broader legal and activist context constitutes the background for the particular analysis presented in this article, of changes in practice in a government primary care clinic.

One of the openings that allowed insider activists to expand the definition of legally sanctioned abortion was a legal debate about the circumstances under which abortion is allowed. Argentina’s abortion law dates to the 1920s. The law states that abortion is illegal, punishable by a range of sentences from 3 to 15 years in prison or more. The legal exceptions under which abortion is allowed include “avoiding a risk to the life or health of the mother and if this risk cannot be avoided by other means” and if the pregnancy “is the result of a rape” [1]. During the twentieth century and into the twenty-first century these legal exceptions were largely meaningless, as doctors typically refused to perform abortions without a judicial order, which could nearly never be acquired in time for the procedure to be completed before the pregnancy had run its course. In 2012 the Argentine Supreme Court ruled that all abortions that fit these legal exceptions had to be handled speedily and satisfactorily by doctors, not sent to the courts. The ruling exhorted all public hospitals to put in place procedures for determining which abortions were legal [2].

In addition to this judicial mandate to increase certain kinds of abortion access, the country has also seen the development over the last several decades of a powerful feminist movement that has made abortion legalization one of its key demands [3]. This movement gained strength since democratization in the 1980s following years of military rule and political instability. By the mid-2000s the abortion rights movement had coalesced into a National Campaign for the Right to Legal, Safe, and Free Abortion, with dozens of individuals and groups as signatories [4].

Another important opening since the 1990s was the availability of misoprostol in pharmacies throughout Latin America as a treatment for gastric ulcers. Because this pharmaceutical causes uterine contractions, women use the drug to induce abortion [5]. As is documented elsewhere [6, 7], starting in the 2000s both feminist activists and health professionals began to offer women information about inducing abortion safely at home using misoprostol. In some government health clinics, including the ones I focus on in this article, this insider activism took the form of what is called in Argentina “pre and post abortion counseling,”¹ which I will refer to simply as abortion counseling. In this practice, teams of health professionals meet with women in “before and after” appointments to advise and follow up on abortions that take place outside the clinic, with the use of misoprostol that the women procure on their own. These health care teams typically consist of some combination of social workers, psychologists, and physicians, who work together to evaluate and counsel each patient. This clinical practice was meant to ensure that if women were going to abort with misoprostol, they knew how to do it safely, yet health professionals could sidestep any possible accusations that they were providing illegal abortion services.²

At the clinic I focus on here, there was a shift in the way the health professionals responded to women seeking abortion between 2013 and 2015. My analysis is based on observations and interviews with insider activists at one government primary care clinic, though as I will describe later, the practice was also in use at other public and private/activist clinics. These health professionals shifted from abortion counseling to redefining women’s abortions as legal pregnancy terminations based on the legal exceptions. These insider activists documented each case with a detailed justification for its legality and directly provided either misoprostol for home induction of abortion or, in some cases, performed aspiration abortions within the primary care clinic. I call this practice “legal pregnancy termination,” though I recognize that what is at stake is precisely the question of whether or not this practice is truly legal under the current law.

In order to justify providing a procedure that is typically understood to be illegal, these health professionals used a diagnostic instrument to frame a woman’s right to terminate a pregnancy by documenting what they describe as the patient’s “bio-psycho-social” risk factors. These health professionals consequently argued that forcing a woman to continue an undesired pregnancy to term had the potential to severely disrupt elements of her bio-psycho-social health and so denying the pregnancy termination inherently constituted a health risk. Effectively, these activist medical professionals argued that essentially all abortions are legal under the current law as they are medically necessary to protect women’s health.

There is an important debate about the meaning of women’s empowerment as an area that seeks to connect feminist priorities with the funding and institutional support of international development initiatives [8]. International donors and transnational governing bodies require measures of empowerment that can be quantified, compared across wide contexts, and used to determine the impact of different policies. Yet this is complicated, because women’s lives are embedded in patriarchal institutions that may make women’s individual choices difficult to assess. Reproductive choices are central to women’s empowerment, because they are first-order, “strategic life choices which are critical for people to live the lives they want” [8]. Uberoi and de Bruyn have argued for reproductive rights as an issue central to women’s self-determination [9]. They cite Anand, who writes as the UN Special Rapporteur on the right to health, arguing that laws that restrict access to reproductive health services interfere with “human dignity,” which “requires that individuals are free to make personal decisions without interference from the State, especially in an area as important and intimate as sexual and reproductive health” [10].

The World Health Organization’s (WHO’s) definition of complete health was referenced repeatedly in government documents and by insider activists in Argentina as a basis for expanding abortion access. The WHO’s Constitution lists under guiding principles: “Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity” [11]. Based on this definition of health, which explicitly includes social well-being, the health exception to abortion can likewise be interpreted very broadly. As reproductive rights activists in Argentina and elsewhere argue, if we take seriously the social well-being component of the definition of complete health, it becomes necessary that all reproductive health services be available to women, including abortion. Foreclosing women’s ability to terminate a pregnancy when that is what they desire inevitably has an effect on physical, mental, and social well-being.

By most measures Argentina is a country where women’s empowerment is relatively high. The country graduates more women than men from secondary level education, and it has relatively high rates of both female labor force participation and women in leadership roles in politics. This is reflected in the country’s relatively high Gender Development Index of .982, which is calculated comparing women’s and men’s average life expectancy, schooling, and income for any given country [12]. Yet the country’s Gender Inequality Index is dragged down by its high rate of maternal mortality and high adolescent birth rate relative to similar countries [13]. Therefore, Argentina is a country that exemplifies how different elements of gender empowerment do not necessarily vary together, especially depending on whether reproductive health enters into the equation. Indeed, the disparity between these two measures of gender equality likely reflects a class divide between educated, middle-class women whose options for participating in economic and political life are broad and whose education levels are as high as or higher than those of men, and poor women whose options are much more restricted.

In countries like Argentina where abortion is illegal, highly restricted, or otherwise made inaccessible, the institutional response to undesired pregnancy is disempowering, providing women with no options other than to continue the pregnancy to term. This institutional response denies women agency at a critical juncture in their reproductive lives and closes off the possibility of choosing an alternative future for their families and themselves. In Argentina, as elsewhere, these restrictive laws disproportionately affect poor women who cannot afford safe clandestine abortions in private clinics. Additionally, women’s lives are more likely to be disrupted by unplanned and undesired pregnancies if their income and living situations are already precarious. As Upadhyay et al. [14] have discussed, past research has considered the effect that women’s empowerment has on their fertility, but it has failed to consider that “fertility outcomes may cause changes in women’s empowerment” [emphasis in the original]. Indeed, the inability to prevent pregnancy or access safe abortion may reflect a woman’s low level of empowerment, but resulting undesired and/or successive pregnancies also have a high potential to further restrict a woman’s autonomy and self-determination.

Abortion is typically a rare event in any individual woman’s life. Yet lack of access to abortion can have dire consequences that affect the entire trajectory of a woman’s life. These dire consequences in extreme cases can include mortality and morbidity from dangerous back-alley procedures. Since abortion is safer than labor and delivery, especially for women who lack adequate prenatal care, mortality and morbidity from childbirth complications could also be considered otherwise preventable health outcomes that women who are not given access to abortion are subsequently more likely to face. But forced maternity is a much more common result that also may radically change the course of a woman’s life. If undesired childbearing exposes a woman to job loss, family rejection, economic hardship, or foreclosed educational opportunities, we know based on fundamental cause theory that these social factors will ultimately have negative health effects [15]. Indeed, the analyses from the groundbreaking Turnaway Study support the argument that lack of access to abortion is demonstrably detrimental to the lives, life plans, and health of women [16‐19].

The clinical practice of abortion counseling was imported to Argentina from Uruguay [20]. Its proponents describe abortion counseling as a “harm reduction” strategy, borrowing language from needle exchange programs and other public health responses to illicit drug use. The idea is that criminalizing abortion does not reduce its incidence, so a public health response must seek to reduce the damages done by people engaged in that practice while withholding moral judgment [21]. Just as health professionals distribute clean needles so that intravenous drug users do not contract blood-borne diseases, in abortion counseling health professionals provide women with complete information for inducing abortion safely using misoprostol, so that if women choose to abort, they are able to do so safely.

There is a small but significant minority of health professionals in and around Buenos Aires who have been providing abortion counseling since the mid-2000s, either openly with the support or indifference of their superiors, or secretly [20]. In August of 2015 the province of Buenos Aires passed a law instituting abortion counseling at all of the province’s primary care clinics for women seeking to terminate pregnancies [22]. Though the practice was already in use at some clinics and hospitals, this law provides greater legal protection for insider activists who wish to continue or expand this practice in the province.

In a small number of clinics the practice of abortion counseling had been described to me in detail when I conducted interviews in 2013. By 2015, the health professionals in one of these clinics had shifted to the practice of legal pregnancy termination. This change resulted in part from medical professionals’ recognition of important limitations inherent in the abortion-counseling model. With funding from the National Health Ministry, the health professionals in one clinic completed a research report reviewing data from their abortion-counseling service [23]. The report was largely positive, describing how the service allowed women to make a truly autonomous decision about their reproductive future, free from fear of dangerous back-alley procedures. Yet the report recognized an important limitation: a plurality of patients (32%) never returned for their post-abortion appointment. Within this group there was an over-representation of women with the lowest education levels, likely suggesting that these women were poorer and more vulnerable than their counterparts who did return for the follow-up appointments. The medical staff were disturbed by the possibility that these women were unable to acquire misoprostol and so were forced to continue the pregnancy. Additionally, misoprostol taken alone has a failure rate of more than 10% [5].³ Though misoprostol solved the problem of unwanted pregnancy safely for many women who made their way through the abortion-counseling service, for at least 1 in 10 the pills taken at the proper dosage failed to induce an abortion. Women then faced concerns about a pregnancy that was now more likely to be entering the second trimester, making other clandestine abortion options even more dangerous, and with an increased risk of birth defects should they take the pregnancy to term [24]. Perhaps the service was giving a significant proportion of women hope and then failing them.

It was in this context of frustration with the limitations of merely providing abortion counseling that insider activists at the clinic began to offer abortion services directly, eventually claiming that essentially all abortions are legal health exception abortions. It is important to understand this decision as existing in a context of legal constraints, given that the penal code is typically understood to define abortion as illegal in most cases. But there was also a level of institutional opening to the possibility of expanding the definition of legal abortion, with both national and transnational actors playing a role. In 2014 the municipality that oversees this clinic passed an ordinance giving official support to the abortion-counseling model. The practice in the clinic predated the municipal ordinance, but the local law further legitimized this practice and likely offered some protection from prosecution.

Moving from the local to the national level there is less direct, but still significant support from the National Health Ministry. When I interviewed health professionals in this clinic in 2015, the Argentine National Health Ministry had just days earlier released a Protocol for the Comprehensive Treatment of Persons with a Right to a Legal Pregnancy Termination [25]. In comparison to an earlier version of this document, from 2010, the definition of health exceptions presented in the new 2015 document is both broad and vague enough that it could readily be interpreted by sympathetic parties to allow, or even mandate, the legal pregnancy terminations taking place in the clinic I describe. Though Catholic authorities expressed concern about the content of this new guide [26], health ministry officials insisted that the intent was not to change policy, but merely to bring clinical practice in line with the 2012 Supreme Court decision [27].

The new protocol begins by asserting that women’s autonomy is of the utmost importance. It argues that the concept of “danger” to health “does not require the appearance of harm, but rather its possible occurrence”⁴ [25]. The document also specifically warns the health professionals that are its intended audience that, “Incomplete or inadequate information, or underestimating the risk [faced by a woman seeking a legal pregnancy interruption] can result in the legal responsibility of the health professional involved” [25]. So the emphasis is on potential legal sanctions professionals face if they deny an abortion that should be allowed, rather than any legal risk to performing an abortion that might not adequately fit the legal exception. The list of authorities involved in the preparation of this new protocol includes activists and doctors engaged in efforts to legalize abortion and local reproductive rights groups funded by the International Planned Parenthood Federation [28]. The clinical practice presented here is shaped, and protected, by a wide variety of reproductive rights actors nationally and internationally, who are actively promoting the health exception as a way to expand abortion access [29].

In contrast to the practice at the handful of clinics I describe here, at most clinics and hospitals across Argentina abortion was still seen as fundamentally illegal and even cases that fit the legal exceptions were often brushed aside. Though prosecution was rare, it was not inexistent. The fear of prosecution, both for women seeking abortion and for doctors who were not supported by their superiors, was very real. Indeed, though the health professionals I describe consider abortion legal based on health exceptions in most cases, in other clinics patients were likely to face condemnation and refusal of any kind of evaluation of the legality of an abortion, no matter the circumstances. For example, at an activist clinic a doctor described the case of a 13-year-old girl who had become pregnant as a result of sexual abuse. Yet when her mother took her to a local hospital for what should have been a clear-cut legal pregnancy termination, the doctors sent the girl home with a prescription for prenatal vitamins, refusing to discuss the matter further. It was within this sometimes-confusing context of legality that the clinic at the center of this analysis had moved from abortion counseling to directly providing legal pregnancy terminations.

By the time I returned to this clinic in 2015, what had begun as a halting process of slowly extending the definition of abortion on legal grounds to include cases that required a broad interpretation of the criteria, had become a fully institutionalized new diagnostic process, with a diagnostic instrument created by clinic staff. This instrument was an intake form that was completed with the patient and was used to interpret essentially all requests for abortion as legitimate based on legal grounds. A psychologist who worked in the abortion service at this clinic described in 2015 how at first they thought of abortion as a crime, so their approach was a harm reduction strategy, but later they came to think of abortion “not as a crime, but as a health concern.” When I spoke to the social worker in 2015, she described how at the time I interviewed her in 2013 they had only handled a few abortions as legal pregnancy terminations. In 2014, out of 180 patients who went through abortion counseling in the clinic, 140 were handled as legal pregnancy terminations with clinic staff directly providing misoprostol. And so far in 2015, “practically out of 5 women that we’re able to see each week, all 5 are legal [pregnancy] terminations.” For a quantitative analysis of the expansion of this kind of legal pregnancy termination practice at similar clinics in Buenos Aires, see the recent piece in the International Journal of Gynecology and Obstetrics [31].

Indeed, the fact that elements of women’s stories were crucial to decide how to “diagnose” the legality of the pregnancy termination is not surprising. This constitutes a form of medical history taking, though in this particular case the diagnosis involves a legal judgment and not merely a medical one. There are debates about the best ways to take medical histories so that patients are able to fully share their perspectives [32]. But even those who suggest that patients must be allowed to play an active role in constructing their medical history have not suggested that the history would fundamentally change the diagnostic categories that the health professional must consider. Fitting the narrative to the appropriate diagnostic categories is the task of a trained medical professional with the expertise to make those judgments. In this clinic it was patients’ experiences that were then translated into diagnostic criteria, their narratives turned into a powerful instrument for expanding abortion access.

Between 2013 and 2015 the insider activists created a diagnostic instrument by incorporating the stories women told about how and why pregnancy disrupted their lives, livelihoods, and well-being as categories that clearly suggested that negative health effects were likely. Rather than fitting the story to pre-existing diagnostic categories, they constructed the diagnostic categories around women’s stories. The social worker described this process, while holding up a copy of the diagnostic tool, as follows:

These indications [of legal pregnancy termination], women taught them to us. Which are the indications that women come to us with… We didn’t make this up. It was a conversation… ‘Hey, women say this or that thing a lot!’ [For example,] they don’t have a partner with whom to raise the child. So that must be important. They often say that they’re still trying to finish high school. Or they’re in Women Do It [Ellas Hacen, a workfare program]. So we thought about what things they say often. Or we began to see, when we systematically analyzed the medical histories, that many who wish to terminate a pregnancy are still in the postnatal period [from a previous birth]… The act of listening to women, together with our theoretical frame, gave rise to this list of indications.

So, in contrast to the typical taking of a medical history and making a medical judgment about what diagnostic categories are applicable, this was a process in which a diagnostic instrument was created from categories that arose from patients’ narratives.

In 2015, this approach of legal pregnancy termination had culminated in the creation of intake forms, which were being utilized in what was described as a pilot phase of the new diagnostic instrument. These forms included a checklist of possible categories that might result in designating the case as a legal pregnancy termination (see Additional files 1 and 2 for English translations of these intake forms). This checklist included the headings: direct risks to health, indirect risks to health, mental health risks, and socio-familial determinants that together with the pregnancy pose a risk to the woman’s health.

By creating these forms, the clinic staff had taken women’s stories and created a diagnostic instrument that legitimized their reasons for needing to terminate a pregnancy. The health care professionals described the creation of these forms as part of a process of creating objective criteria for deciding these cases, after considering ways to remove subjective judgments about which cases fit the criteria:

What criteria are we using? Sure, if she cries and she seems distressed she must be very affected [by the situation]. But, well, what happens with the woman who doesn’t cry in the interview, who is distressed but doesn’t show it? So the challenge these last few months, and which is now in a pilot phase, of the diagnostic instrument, where we can make sure these criteria are objective, where we make a diagnosis of the three health areas that are affected by the pregnancy.

Once the health professionals in these clinics deemed a case to be a legal pregnancy termination, they then provided misoprostol directly to women who were still in the first trimester, so that they could induce their abortion at home. In 2015 the clinic staff had begun scheduling women who were just past the first trimester for aspiration abortions with a trained physician who visited the clinic biweekly.

The health care teams also produced case histories detailing each patient’s situation and the reasons for the procedure’s legality under the health or rape exceptions. The social worker read to me from one of the completed legal pregnancy termination narratives:

Patient X finds herself in a socio-familial-emotional situation whose conditions make it impossible for her to continue with this pregnancy and face the prospect of having another child. This means she is confronted with a dilemma that can only be resolved by terminating the gestation. For these reasons, which have been probed with the diagnostic instrument, it is judged that this pregnancy is a risk for the complete health [salud integral] of Patient X. And this risk cannot be avoided by any means other than the legal termination of the pregnancy.

The official paperwork prepared for each patient was kept on file at the health center.

Ideas of autonomy and empowerment were central to the ways these insider activists understood of the experience of women seeking abortion in this clinic. In 2013 the social worker described the work of abortion counseling as opening opportunities for women to exercise autonomy and become empowered. She described the situation where women are denied abortion by saying:

In order for a woman to exercise her autonomy, at a minimum she has to have two options. If, when facing an involuntary pregnancy [embarazo involuntario], the only option she has is to continue and live a forced maternity or, the other option, is to terminate [the pregnancy] but at the cost of risking her health or her life, or suffering psychologically or physically, that’s not an option.

In contrast to women disempowered by the denial of abortion, women who were helped by the clinic:

…come out empowered [fortalecidas], which is to say that this experience can also be something that provokes a kind of personal growth, increased autonomy, a way to pull away from a relationship that subjugated them, to be able to move out of their parents’ house, just another decision. We really see that many women come out of this with a kind of learning experience.

If a poor woman is unable to secure a safe abortion, she may instead face what activists in Argentina call “forced maternity.” This forced maternity may be accompanied by a series of concomitant restrictions in future life choices. As detailed in the diagnostic instrument, depending on the particular details of a woman’s life, these can include an inability to complete schooling, family rejection or homelessness, continued contact with an abusive partner who is the parent of the child, or job loss if maternity leave protections are inadequate. These insider activists seem to have intuited through their interactions with women seeking abortion the same patterns that the Turnaway Study is now demonstrating empirically [16‐19].

It may seem odd that government employees in a country where abortion is typically understood to be illegal in most cases would openly perform abortion in a state health clinic. But that was the case in this clinic. In fact, these insider activists operated quite openly within their municipal context. They had posted a hand-written sign in one primary care clinic waiting room that advised women: “Services for Women Facing Abortion. In any case it is your decision and you have a right to protect your health. Please come as soon as possible, walk-in basis, Wednesdays at 9:00 am” [emphasis in the original]. The health professionals running this service did not express to me any concern about prosecution. The concerns they did express included demands for greater support for their work. They were lobbying the municipal health ministry to procure mifepristone⁵ so that they could provide pharmaceutical abortion of equal quality to that provided in countries where the procedure is generally legal, even though mifepristone is not commercially available in Argentina. Furthermore, they were lobbying for funds to hire one more physician, which would allow them to expand their provision of legal pregnancy terminations.

The insider activists I spoke with often seemed to alternate between asserting that the legal pregnancy terminations they performed were clearly legal under the current law and also required by medical ethics that recognize women’s autonomy, on the one hand, and a recognition that their view was a minority perspective and that they were engaging in insider activism meant to change the paradigm of abortion provision, on the other. The physician I interviewed described his own training as an obstetrician/gynecologist, where a medico-legal professor, “said that abortion was illegal, that it couldn’t be done, unless the woman is dying, and can’t be saved by any other means. That’s the class I got on legal medicine. That was the interpretation.” Yet earlier in the same interview he had asserted that abortion in Argentina, “is not legislated, the law doesn’t say what we can’t do, so we can do all kinds of things.” At another point he seemed to recognize his role as an insider activist when he described his work providing abortions in the government health system by saying, “From within the system we have to find the cracks and break things open.”

Peer review reports for this article are available in Additional file 3.