Andrés Constantin and Maia Levy Daniel
A few years ago, Belén ended up in jail after being admitted to a hospital in Argentina for suffering a miscarriage. Within hours, she was surrounded by the police and accused of having induced an abortion, which was illegal. Belén spent 29 months in preventive detention and was sentenced to eight years in prison for aggravated homicide due to Argentina’s strict abortion laws at the time. Her case moved thousands of people to take to the streets and demand her release. Belén’s situation highlights what life is like when abortion is banned, and it was instrumental in putting an end to abortion criminalization in Argentina in 2020.
Nearly 50 years after Roe v. Wade made the right to abortion the law of the land, the US Supreme Court overruled it. Cases like Belen’s will now become common in the United States. Indeed, the future of civil rights is at stake. Ironically, many countries have taken huge strides for women’s rights in recent years, making the United States an outlier, joining the ranks of countries that limit abortion in most circumstances, such as Brazil, Libya, Syria, Iran, or Poland.
The Supreme Court decision in Dobbs v. Jackson Women’s Health is dangerous. Evidence shows that restricting access to abortion affects the procedure’s quality and safety, while imposing heavy burdens on pregnant people. The highest incidence of unsafe abortions occurs in countries with the most restrictive abortion laws.
Indeed, Dobbs won’t end abortion, it will only end access to safe abortions. We have seen this play out in many Latin American countries. Dobbs will condemn pregnant people to choose between continuing with an unwanted pregnancy or putting their lives at risk. In some states, pregnant people will likely face criminalization any time a pregnancy ends and bear the burden of traveling out of state to access abortion services, with devastating consequences for already marginalized pregnant people.
The United States has turned its back on pregnant people seeking health care. This decision will force them to resort to clandestine, illegal, and unsafe abortion services. It will heavily limit their individual and personal decisions about their own health and lives. It will coerce them into assuming a reproductive and maternal role in society, and perpetuate a model of family grounded on patriarchal preconceptions. Ultimately, it will foster a climate of fear and stigma among those seeking an abortion.
In this post-Roe era, pregnant people in the United States will be at risk of persecution for all kinds of actions and omissions even if they did not intend to end the pregnancy, based on the false assumption that they wanted their pregnancy to end. Examples of this abound, particularly in Central America, where total bans on abortions mean that pregnant people can end up in jail for miscarriages. In El Salvador, for instance, a woman who miscarried at 18 weeks was sentenced to a 40-year prison term.
The risks become even more dangerous when considering the digital world we live in. Nearly a third of women in the United States use period-tracking apps that collect sensitive health data and can predict when a period starts and stops, or if a woman is pregnant. As experts have already warned, HIPAA, the federal law that protects sensitive patient health information, does not cover data shared and stored in period-tracking apps. We could well foresee a scenario where this data ends up in the hands of conservative government authorities and is used to criminalize people who are considering or actively seeking an abortion. This is not a distant problem. These apps have already shared women’s sensitive health information with other companies in the past.
It is deplorable that in the 21st century pregnant people’s autonomy and freedom continue to be at the center of the political battle. Now, as countries around the Americas move towards the liberalization of abortion, the United States took a dangerous step back.
As discouraging the scenario after the Dobbs decision might be, the United States can still learn from Latin American experiences and seriously commit to gender equality and reproductive rights by preserving the protections promised under Roe v. Wade. Congressional action is needed to protect abortion as the law of the land and defend reproductive freedom. The United States needs to listen to the demands of tens of millions of pregnant people whose only request is to have control about what they do to their own bodies.
Andrés Constantin is a global health lawyer and the Assistant Director of Health Law Programs at the O’Neill Institute for National and Global Health Law
Maia Levy Daniel is a technology law, policy and regulation specialist and a researcher with the Center for Studies in Technology and Society.
 A. Constantin, Muerte o Cárcel: Persecución y sanción por aborto (Lima: CLACAI, 2018).
 See Amnesty International, On the Brink of Death: Violence Against Women and the Abortion Ban in El Salvador (New York: Amnesty International, 2014).