Federalism, two-level games and the politics of abortion rights implementation in subnational Argentina

Abstract

The implementation of the 2012 Argentinean Supreme Court landmark ruling, which declared abortion legal in all cases of rape and established standards of implementation of lawful abortions at all levels of government, shows an uneven pattern of compliance by subnational governments throughout the country. Based on a case-study of the implementation of the Court’s decision in the province of Salta, this article advances an explanation of mechanisms that can affect the definition and enforcement of abortion rights at the local level, in a federation. Drawing on Putnam’s concept of two-level games, it argues that, at critical junctures, local authorities and especially strong governors with presidential aspirations, may have electoral incentives at the national level to comply at least partially with national laws and judicial decisions which are contrary to their own ideological preferences and their local political allegiances. The study suggests that analyses of political opportunities for local reproductive rights activists in federal regimes should include the potential two-level games of local authorities, such as politicians with presidential aspirations, and judges who intend to pursue a career in national or international institutions. Through this analysis, the article intends to contribute to our understanding of the political determinants of subnational compliance with national abortion laws and court decisions in federal systems, and more generally, political factors and dynamics that shape inequities in the protection of women’s rights under federalism.

Résumé

L’application de la décision historique de la Cour suprême argentine de 2012, qui a déclaré l’avortement légal dans tous les cas de viol et a établi les normes de mise en œuvre des avortements autorisés par la loi à tous les niveaux administratifs, montre des modalités inégales de respect de la part des autorités sous-nationales dans le pays. Fondé sur une étude de cas de l’application de la décision de la Cour dans la province de Salta, cet article avance une explication des mécanismes qui peuvent influer sur la définition et l’exécution des droits à l’avortement au niveau local, dans une fédération. S’inspirant du concept de Putnam de jeux à deux niveaux, il affirme que, dans des moments critiques, les autorités locales et particulièrement les gouverneurs forts qui ont des aspirations présidentielles, peuvent avoir des encouragements électoraux au niveau national les incitant à respecter au moins partiellement les lois nationales et les décisions judiciaires contraires à leurs propres préférences idéologiques et leurs engagements politiques locaux. L’étude suggère que les analyses des opportunités politiques offertes aux militants locaux des droits reproductifs dans les régimes fédéraux devraient inclure les jeux potentiels à deux niveaux des autorités locales, comme les politiciens avec des aspirations présidentielles, et des juges qui souhaitent poursuivre une carrière dans les institutions nationales ou internationales. Par cette analyse, l’article entend contribuer à notre compréhension des déterminants politiques du respect sous-national des lois nationales sur l’avortement et des décisions judiciaires dans des systèmes fédéraux, et, plus généralement, des facteurs politiques et des dynamiques qui façonnent les inégalités dans la protection des droits des femmes dans le fédéralisme.

Resumen

La aplicación del fallo histórico de 2012 por la Corte Suprema de Justicia de Argentina, que declaró el aborto legal en todos los casos de violación y estableció normas de ejecución de abortos legales en todos los niveles del gobierno, muestra un patrón desigual de cumplimiento por gobiernos subnacionales en toda la nación. A raíz de un estudio de caso de aplicación de la decisión de la Corte en la provincia de Salta, este artículo presenta una explicación de los mecanismos que pueden afectar la definición y el cumplimiento del derecho al aborto a nivel local, en una federación. Basándose en el concepto de Putnam del juego de doble nivel, argumenta que, en momentos críticos, las autoridades locales y especialmente gobernadores influyentes con aspiraciones presidenciales, podrían tener incentivos electorales a nivel nacional para cumplir por lo menos parcialmente con las leyes nacionales y decisiones judiciales contrarias a sus propias preferencias ideológicas y sus lealtades políticas locales. El estudio sugiere que los análisis de oportunidades políticas para activistas locales que abogan por los derechos reproductivos en regímenes federales deberían incluir el potencial de juegos de doble nivel de las autoridades locales, tales como políticos con aspiraciones presidenciales, y jueces que piensan seguir una carrera en instituciones nacionales o internacionales. Por medio de este análisis, el artículo procura contribuir a nuestra comprensión de los determinantes políticos de cumplimiento subnacional con las leyes nacionales sobre aborto y decisiones judiciales en sistemas federales, y de manera más general, de los factores políticos y dinámicas que definen las desigualdades en la protección de los derechos de las mujeres bajo el federalismo.

Keywords:

• federalism
• reproductive rights
• abortion politics
• inequality
• subnational politics
• two-level games
• compliance with judicial decisions
• Argentina
• Latin America

Introduction

In Latin America, there are three main types of abortion law. In a small number of instances, first trimester abortion at a woman’s request is legal (Cuba, Puerto Rico, Guyana, Mexico City and Uruguay). In the majority of countries in the region, abortion is considered a crime, except under some circumstances such as to save a woman’s life, or in cases of rape or risk to the woman’s health. Finally, four countries have some of the most restrictive abortion laws in the world, and completely prohibit the practice (Dominican Republic, El Salvador, Honduras and Nicaragua).

Argentina, like most other Latin American countries, criminalises abortion in all stages of pregnancy. Abortion is allowed only in cases of rape or when the life or health of the woman is at risk. Nevertheless, the effective implementation of even this restrictive law has been jeopardised by a series of factors, among them the reluctance of subnational authorities to comply with national laws and decisions issued by national courts. This has produced a pattern of inequality throughout the country, in women’s access to the right to reproductive health, especially given the federal system of government. It confirms Smulovitz’s claim that in countries with federal systems, territorial location should be included as a component of social inequality, in addition to socio-economic factors.¹ Based on the study of the case of Salta, Argentina, this article aims to contribute to our understanding of the political determinants of compliance with national norms by subnational authorities in federal systems, and more generally to the understanding of the mechanisms that affect unequal enforcement of women’s rights in national territories under federalism.

One of the main landmarks in the struggle for the liberalisation of abortion laws in Argentina was the 2012 Supreme Court decision in the F., A.L. case, in which the Court declared that article 86 of the Criminal Code (of 1921) should be interpreted as decriminalising abortion in all cases of rape (and not only in cases of mentally handicapped women).² This ruling intended to resolve a long-standing legal dispute in the country regarding the right to abortion under this exception. The Court also urged subnational authorities to issue protocols applying to all non-punishable abortions in accordance with detailed criteria established by the Court, among which was that the only requirement for women to have access to abortion services in cases of rape was their declaration (declaración jurada) in a public hospital.

The Decision by the Supreme Court has not been enforced equally throughout the country. According to a Report by the Association of Civil Rights (ADC), in 2015, eight provinces had protocols that met the Court’s directives (in two provinces, protocols existed already); eight jurisdictions (seven provinces and the City of Buenos Aires) had protocols that only partially complied with the Court’s criteria; and eight provinces had not issued protocols.³

In 2012, the highly conservative Governor of the province of Salta, which is considered a bastion of traditionalism, responded to the Supreme Court’s ruling by immediately declaring that no protocol would be issued in this province. However, Salta ended up being the first province to comply, though partially and insufficiently, with the Court’s Decision. This study analyses the process in the Salta case, drawing on Putnam’s⁴ conceptualisation of two-level games in international relations. It argues that local authorities, concerned simultaneously with local and national pressures (and, in particular, strong governors with presidential aspirations), may comply at least partially with national norms due to electoral incentives at the national level, beyond their ideological preferences and their local political allegiances. In this way, two-level games, and pressures from both local constituencies and national political forces can shape local abortion norms and the implementation of national laws and judicial decisions at the subnational level. This argument can apply also to local judges who, beyond ideological preferences and local interests, also care about their reputation at national and international levels.

Given the historic reluctance to comply with norms regarding lawful abortions, and that in Argentina most of the power and competencies for implementation of abortion services lie in local governments, we can anticipate that the unequal implementation of national abortion norms will continue to be an issue even if abortion at a woman’s request is legalised in this country. In 2018, a bill to legalise abortion on request was approved in the House of Deputies but fell seven votes short in the Senate. In Argentina, as in most other Latin American countries except México, the main Codes (Civil, Commercial, Criminal, Labour, etc.) are enacted by the national Congress. However, in Argentina, the provinces intervene in the regulation of those laws, and the implementation of protocols for lawful abortions is under the jurisdiction of local governments through their health ministries. Moreover, most of the cost of health services is met by the provinces. This has followed the decentralisation process in the late 1980s and 1990s when the funding and administration of the health sector became a provincial responsibility.^5,6

Understanding the mechanisms that can affect local government’s compliance with national directives is highly relevant for the analysis of abortion rights politics and policies under federalism in Argentina, and arguably elsewhere. At the same time, this can also contribute to understanding the political factors and dynamics that lead to territorial inequities in terms of access to women’s rights in federal systems. Drawing on the study of the political process of implementation of national abortion directives in the province of Salta, this article advances an explanation of one of the mechanisms that can affect the timing and content of subnational compliance with national laws, and in this way contribute to determine the shape of local abortion norms.

Research for this study included surveying news articles from local and national newspapers, analysis of legal documents, and 12 in-person interviews with feminist activists, academics, journalists and historians, conducted by the author in the city of Salta in 2013. The analysis follows process tracing, a qualitative tool for identifying explanatory mechanisms in within-case studies.^7,8 Identification of the chain of events, and analysis of incentives and conditions was undertaken, to explain the hypothesised two-level game mechanism in the Salta case. The first section presents the theoretical perspective, which analyses how the two-level game theory developed by Putnam for the field of international relations can apply to the analysis of subnational politics of abortion in federal systems. The second section traces the process of implementation of the Supreme Court F., A.L. Decision in Salta, and analyses the interaction between local and national factors that contributed to shape the current abortion regulation in this province.

Theoretical perspective: two-level games under federalism

Gender and federalism scholars have analysed the impact of state architecture on gender politics and policies across national territories.^{1,6,9–10 11 12} Although there are mixed positions regarding the advantages and disadvantages of federalism for the implementation of gender policies, this literature generally agrees that the delegation of policy powers to subnational units leads to the uneven enforcement of women’s rights throughout national territories.¹ Work in this field regarding the Argentinean case has argued that variations in the implementation of women’s rights across the country are due to: the intensity of the local electoral competition and the strength of women’s organisational capacity;¹ political parties’ positions and the ideology and number of women legislators;¹⁰ and the way party dynamics are territorialised, i.e. linked to local concerns, leading local politicians to defend local interests.⁶ This article intends to contribute to this field by analysing a mechanism not previously considered by the literature: the two-level games of subnational authorities.

Federalism empowers local authorities and in cases of so-called robust federalism such as Argentina, Mexico and Brazil, governors have significant autonomy and resources, and politicians have strong incentives to respond firstly to local interests.¹³ The positive aspect of robust federalism is that governors committed to reform can be decisive actors in affecting changes despite difficulties in advancing policies at the national level.¹³ However, local leaders may also resist the implementation of progressive national laws or court decisions. As shown by Franceschet and Piscopo, in the implementation of national laws on reproductive rights in Argentina, provincial politicians respond to local dynamics, with the provinces’ degree of traditionalism being a prominent factor.⁶ Not only may traditionalism and conservatism at the local level generally affect the enforcement of rights, but also, as Vickers observes, traditionalism and “territorial pluralism” are often explicitly invoked by local authorities and conservative actors in federal systems to resist reforms and the advancement of women’s and sexual minorities’ rights.¹²

Informal norms and institutions contribute to explaining local variations regarding the enforcement of women’s rights in federal systems.¹⁴ In Latin America, cultural understandings about the proper separation between the spheres of State and Church are a key part of traditionalist informal norms, and a crucial element to be considered in the analysis of political opportunities for feminist mobilisation in subnational entities. In these contexts, informal norms and institutions that regulate the relationship between State and Church at the local level may, in fact, explain provincial leaders’ resistance to implementing national laws on women’s rights, beyond their personal preferences. This may be so particularly when institutional incentives, such as the way parties are organised under federalism, lead local politicians to respond first to local interests.⁶

In certain junctures, however, politicians who usually respond first to local interests, may also have incentives to comply at least partially with national laws and judicial decisions which are contrary to their own preferences and local political allegiances. In Argentina, strong Governors are powerful actors in the national arena and have an interest in building a reputation in the national public sphere, especially given that ex-governors have often occupied the national presidency. These local politicians are concerned with maintaining a national image of compliance with the rule of law and democratic practices. In Argentina, as in other Latin American countries, local traditionalist practices and informal institutions coexist with the symbolic importance of discourse on human rights, the rule of law, and democracy, particularly at national level. Subnational authorities are thus attentive to factors at local and national levels. At critical junctures, strong governors with presidential aspirations may play a two-level game, responding on the one hand to local constituencies, but also to national pressure for compliance with national directives. This argument can also apply to other local actors, such as judges, who are also attentive to the public discussion on controversial issues¹⁵ and are also interested in their national and international image, and may have career-related incentives.

Within the field of gender and federalism studies, the conceptualisation of two-level games was advanced to refer to the behaviour of feminist activists, who can take advantage of the opportunity offered by federal systems to choose among different levels of government.⁹ Drawing on Putnam’s theory of two-level games, we use this concept in a different way. In his study of the politics of international negotiations, Putnam argues that “moves that are rational for country leaders on one board might be impolitic for the same actors at the other one”.⁴ Incentives in the two arenas are different, and politicians are attentive to both games, trying to reconcile, at the same time, domestic and international pressures.⁴ This, according to Putnam, results in their adopting policies which cannot be explained by either a purely domestic or international analysis.⁴

If we apply this rationale to the analysis of subnational-national political dynamics, we can see that subnational authorities who have electoral and career incentives at the national level, on occasion are led to pay attention to national imperatives, even if this entails downplaying their own position based on local interests. This is a political opportunity that can be seized by organised feminist movements at the subnational level. A condition for two-level games to work in these cases is the availability of mechanisms of accountability forged by organised feminist activism at the local level and their connection with committed journalists working on gender issues in national media. If these factors exist, shaming mechanisms can be activated rapidly and activists can seize the opportunity to create momentum and to pressure local authorities to comply with national norms.

Tracing subnational partial compliance in the Salta case

Compliance with the 2012 Supreme Court F., A.L. Decision has been uneven in the Argentinean provinces. Salta, an emblematic example of traditionalism, and headed by a conservative and initially defiant Governor, is not the worst case in the country in terms of formal implementation of the ruling. By tracing the political process that led to the government’s partial compliance with the Court’s directives, we can assess the national and local dynamics that shaped this policy result.

After the Supreme Court’s Decision of 13 March 2012, Salta’s Governor Juan Manuel Urtubey (elected in 2007, reelected in 2011 and 2015), openly defied it. On 20 March, he declared he would not comply with the decision, and that in Salta, abortions in cases of rape would only be carried out if a judge authorised the practice, a process explicitly outlawed by the Court.^16,17 Urtubey said that the Court’s interpretation of the Penal Code was “an opinion”, and that his province would not make changes on this issue until the law was modified by the National Congress.¹⁸ In his first response to the Court’s Decision, the Governor spoke in accordance with his own religious convictions, as well as to his local constituencies and elite allies.

Salta is one of the most traditional provinces in the country, with a conservative social structure and Catholic forces with a strong influence on the State. Interviewees for this study characterise part of the elite sectors in Salta, who are proud of the Province’s colonial past, as the “last bastions of Hispanic conservatism in the country” (see Note 1).

With regard to the influence of religious forces on the State, Salta is a jurisdiction that grants high formal privileges to the Catholic Church through constitutional provisions,¹⁹ and informal rules and cultural understandings reinforce the capacity of the Church to influence public policies. In the words of an interviewee, “in Salta, Catholicism is part of the cultural matrix, and there is a perceived superposition between culture and religion” (see Note 2). Since the current Governor, Juan Manuel Urtubey took office, the ultra-conservative Catholic group Opus Dei gained ascendancy in the local State’s structure (see Note 1). Urtubey appointed Opus Dei members to key positions responsible for the rights of women and vulnerable groups, such as the Minister of Education and the office of the Public Defender of Minors (see Note 2). During the past decade, it became known nationally that this province did not comply with the National Programme of Comprehensive Sexual Education (created in 2006), and that educational materials from the National Ministry of Education were returned without being used.²⁰ Moreover, the government allowed the practice of religious education at public schools, which was eventually declared unconstitutional by the Supreme Court in 2017.²¹

The Governor’s declarations in 2012 were met by a strong reaction from local feminist activists from the two main networks that form an active and diverse feminist movement in Salta: the Multisectorial de Mujeres (Women’s Multisectoral Organisation) founded in 2003, and the Foro de Mujeres por la Igualdad de Oportunidades (Women’s Forum for Equal Opportunities), created in 2004 (see Notes 3⁴–5). Feminist activists in Salta established links with feminist journalists working at a major national newspaper, Página/12, as well as with alternative feminist media with national reach, such as Comunicar Igualdad;²² their reporting has been a key element in the feminist struggle for women’s rights in this province. In particular, reporting by feminist journalist Mariana Carbajal, who had previously covered other cases of violations of women’s rights in Salta and other provinces for Página/12, was instrumental in making Urtubey’s defiance known nationwide. The Governor’s stance was also widely criticised through social networks.²³ As pointed out by interviewees for this study, Salta has built a reputation as a province where violence against women is rampant, and “any news about machismo and violation of women’s rights in Salta has immediate resonance at the national level” (see Note 2).

The national reverberations of the case had an impact on the Governor’s further actions on this issue. As observed by Violeta Carrique, a prominent feminist activist in Salta, the culture of human rights permeates society, and makes it politically incorrect to express an openly machista position. Thus, judges and politicians attempt to appear progressive, and to show that they are incorporating a human rights framework in their work (see Note 6). Several interviewees for this study also pointed out that Urtubey is interested in maintaining an image of compliance with national gender equality norms, and the rule of law more generally, due to his presidential aspirations. According to an interviewee, his government was concerned about being shamed at the national level: “it was a media scandal, and Urtubey does not like media scandals” (see Note 7). Urtubey’s presidential aspirations have been widely publicised.²⁴ It was also pointed out that, after the scandal, “he was pressured by national authorities from his own party to comply, because no local politician with presidential aspirations can appear openly defiant of a Supreme Court ruling” (see Note 3). As expressed by an interviewee for this study, the government “rebels against national norms on women’s rights until the media makes it public” (see Note 1).

On 22 March 2012, Urtubey issued Decree 1170/12, in which he instructed the provincial Ministries of Public Health and of Human Rights to immediately elaborate a protocol on abortions in cases of rape.²⁵ In a significant shift from the Governor’s initial declarations, the Decree stated that “the institutional importance of the Supreme Court’s Decision cannot be ignored”, and it did not include the requirement of judicial authorisation of abortions in cases of rape. However, against the Court’s directive that the only requirement was the woman’s declaration (declaración jurada) of the rape, the Decree established that this declaration should be made with tutelary assistance by the Public Ministry (or that the woman should file a criminal complaint of the rape). This renders the practice bureaucratic and creates undue obstacles to access to lawful abortions. Following those criteria, on 22 May, a Protocol on non-punishable abortions was issued by Salta’s Ministry of Public Health.²⁶ As well as the limitations mentioned, the protocol included only the regulation of non-punishable abortions in cases of rape, and not therapeutic abortions, as had been indicated by the Supreme Court. In addition, the Protocol established that therapeutic abortions would be carried out only during the first 12 weeks of pregnancy, although the Court had not established any time-period.

Given that the Protocol did not comply with the Court’s rule, on 25 April 2013, local women’s rights advocates submitted an action of unconstitutionality before Salta’s Superior Tribunal, against the Governor’s Decree and the provincial Protocol. The claim was presented by the Foro de Mujeres por la Igualdad de Oportunidades, through its President, Irene Cari, sponsored by attorneys Graciela Abbut Carol and Mónica Menini. Public Defender Natalia Buira also joined the claim, on grounds that the Protocol imposed obligations on officials at the Public Ministry that were outside of their jurisdiction. On 12 July 2013, Salta’s Superior Tribunal issued a decision in which it rejected the claim and upheld the constitutionality of the questioned norms.²⁷

Finally, on May 24th 2018, Urtubey issued Decree 584/18, in which Salta’s government adopted the National Protocol for the Legal Interruption of Pregnancy, in accordance with the directives of the F., A.L. ruling.²⁸ The Governor’s decision was the result of a national scandal regarding the tragic situation of a 10-year-old girl in Salta, who was denied a legal abortion by local authorities because the pregnancy exceeded the 12-week time-period established by Salta’s Protocol. Local activists from Foro de Mujeres contacted journalist Mariana Carbajal, who made this case known nationwide on May 22nd through her twitter account, with additional reporting the following day.²⁹ This provoked a cascade of criticism, and the subsequent policy change, confirming the effectiveness of shaming mechanisms and demonstrating the interplay of two-level games by governors concerned with their national reputation.

Conclusions

The analysis of the implementation of national abortion norms in the Argentinean province of Salta shows that among the mechanisms that can influence different patterns of subnational compliance in this field under federal regimes are the two-level games played by local authorities. In the name of tradition and territorial pluralism, subnational authorities may defy national dictates on abortion rights. Conservative officials can attempt to block laws for women’s rights and to act against decisions by national courts, following their own ideology and the preferences of their local constituencies. However, at the same time, these actors may also have strategic concerns regarding their electoral prospects at the national level, and care about their national image. At critical junctures, reputational concerns due to electoral incentives at the national level can take precedence over local interests, leading conservative governors to reassess the convenience of defying national directives on women’s rights, and abortion rights, in particular. In this case, this interplay, or two-level game, between local and national interests resulted in a situation of partial compliance with national abortion norms.

The Salta case-study highlights the role of mechanisms of shaming and accountability, in creating a critical juncture and opening opportunities for two-level games to take place. This study points out two conditions for these mechanisms to work: the presence of active feminist organisations at the subnational level, and their connections with journalists working in major national media outlets who report on their claims.

The study suggests that the two-level game theory developed by Putnam for the field of international relations contributes to the analysis of the political opportunities for local reproductive rights activists in federal systems. It also contributes to an explanation of the factors that shape subnational variations and inequalities in the enforcement of reproductive rights across national territories under federalism. The argument focuses on gender norms and reproductive rights, areas especially sensitive amongst traditionalist local elites. Further research could test the validity of two-level game theory for studying other situations of subnational implementation of national norms, for example in the field of environmental regulation or regarding the rights of aboriginal peoples and other marginalised social groups.

Notes

1. Miguel Angel Cáceres, History Professor, verbal communication, 9 August 2013.

2. Agustín Gómez Augier, Journalist, President of ILEC- Salta, verbal communication 13 August, 2013.

3. Mónica Menini, Legal Advisor of Foro de Mujeres, verbal communication, 7 August 2013.

4. Alicia Ramos, President of Multisectorial de Mujeres, verbal communication, 10 August 2013.

5. Verónica Spaventa, Law Clerk, verbal communication, 4 August 2013.

6. Violeta Carrique, President of the Women’s Commission, National University of Salta, verbal communication, 18 August 2013.

7. Graciela Abbut Carol, Litigant lawyer, legal advisor of Foro de Mujeres, verbal communication, 8 August 2013.