Abortion in Latin America in International Perspective : Limitations and Potentials of the Use of Human Rights Law to Challenge Restrictions

Against the backdrop of the Zika virus epidemic bringing into focus the harsh impacts of prohibitions on abortion in Latin America, this article assesses the impact of international human rights law (‘IHRL') in challenging such restrictions. After considering the regional picture and analyzing four significant international and regional challenges brought against Peru, Mexico and El Salvador, it argues that, despite important successes and the basis for protection of abortion access being contained within established rights such as health and privacy, IHRL's overall impact in this area has been late in coming and relatively limited, particularly with regards to adult women whose pregnancies do not arise from rape and/or pose significant health risks. Shortcomings can be explained in part by IHRL's historically uneasy relationship with women's rights, including a lack of emphasis on socio-economic issues and reluctance to interfere in the private sphere. Also significant, however, are, more specific controversies regarding abortion, including those related to its damaging association with the agenda of population control as well as to religious influences, and resulting divisions within the women's movement. A lack of consensus has led to weaknesses in the structure for protection based on international conferences on population and reproductive issues, in turn affording great significance to regional factors. In Latin America such factors – and particularly the definition of the right to life within the regional human rights convention as generally commencing ‘from the moment of conception' – tend to impede rather than assist with access. As well as exploring the religious and regional roots of views giving precedence to fetal rights, tolerance thereof within the IRHL system compared is contrasted with much more stringent attitudes towards other religious and cultural factors. It is further argued that fulfilment of socio-economic rights is essential in allowing abortion to be recognised as a genuine issue of choice rather than an excuse (whether real or perceived) for states not to provide support during and after motherhood, so that denial of abortion can be established as a clear matter of discrimination which is unacceptable under IHRL