ONLINE CRITICAL PERSPECTIVES 11

The Postreform Stage: Understanding Backlash against

Sexual Policies in Latin America

Verónica Pérez Bentancur, Universidad de La República

Cecilia Rocha-Carpiuc, Universidad de La República/
Universidad Nacional de San Martı́n

doi:10.1017/S1743923X20000069, e3

In Latin America, it is difficult to win approval for policies that allow

induced abortion and same-sex marriage. Social movements face more
obstacles in promoting these policies than in promoting other gender
and LGBTQ policies because abortion and same-sex marriage are
particularly contentious issues. These policies involve doctrinal or
countercultural topics, and supporters of these legislative changes must
confront groups that mobilize to block these reform efforts (Blofield
2006; Corrales 2015; Dı́ez 2015; Friedman 2019; Grzymała-Busse 2015;
Htun 2003). Yet in the period following democratic transitions, some
Latin American countries successfully liberalized their legislation
concerning abortion and marriage equality.
The most far-reaching legal reforms at the national level can be seen in
just two countries: Uruguay passed a law that legalized abortion upon
request (2012), while both Uruguay (2013) and Argentina (2009)
recognized same-sex marriage. Chile (2017) passed a law that provides
minimal protection by decriminalizing abortion for three specific
reasons: when a pregnancy puts a woman’s life at risk, fetal
malformation, and rape. In Colombia (2007), Argentina (in the so-called
FAL ruling, 2012), and Brazil (2012), supreme court decisions clarified
the specific circumstances under which abortion is legal (Cook,
Erdman, and Dickens 2014). Brazil (2013) and Colombia (2016)
enacted judicial resolutions establishing that notaries could no longer
refuse to register same-sex couples seeking to marry (ILGA World 2019).
Nevertheless, access to rights depends not only on whether the legal
reforms take place but also on how the laws or judicial decisions are
implemented. In Latin America, in the postreform stage, reactions
against recently adopted policies legalizing abortion and same-sex
marriage have inhibited individuals’ access to these new rights.

Downloaded from https://www.cambridge.org/core. Gothenburg University Library, on 14 Jul 2020 at 08:31:26, subject to the Cambridge Core
terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1743923X20000069
 12 POLITICS & GENDER 16(1) 2020

Research concerning legal abortion and marriage equality has focused

on analyzing the conditions that were conducive to enacting reforms (for
Latin America, see Blofield 2006; Blofield and Ewig 2017; Corrales
2015; Dı́ez 2015; Htun 2003; Friedman 2019; Pierceson, Piatti-Crocker,
and Schulenberg 2013). However, the politics of the postreform stage —
what happens after the reforms are adopted — has been undertheorized,
and empirical studies about the subject are not sufficiently systematic
(Ayoub 2014; Ball 2016; Corrales 2015; Dickens 2014; Haider-Markel
and Taylor 2016; Johnson, Rodrı́guez Gustá, and Sempol 2019;
Mansbridge and Shames 2008; Wilson 2016).
We argue that researchers must consider the postreform stage to better
understand the conservative backlash against these policies and how
citizens effectively access rights. In this essay, we outline a research
agenda centered on “the day after” legal reforms. To do so, we build on
recent work and illustrative evidence (press, documents of the social
movements, and interviews with their members) from Argentina, Chile,
and Uruguay to construct a typology of backlash against legal abortion
and equal marriage policies. This article represents a first step toward the
systematic study of the postreform stage of these particular policies.

THE CHALLENGES OF THE DAY AFTER

All public policies face challenges right after adoption and during
implementation. In the postreform stage, laws can be reversed, policies
can be modified to depart from their original objectives, or their
implementation may be blocked (Jann and Wegrich 2007; Moe 1993).
Although this is a feature applicable to any postreform process, it is
particularly visible for reforms that target doctrinal or contentious issues
such as legal abortion and same-sex marriage.
In the postreform period, a new politics arises around these policies.
On the one hand, the sites of struggle as well as the significant actors
can change. The executive branch acquires predominance in the
implementation of the law, while the bureaucrats constituting the last
link in the implementation process may acquire more relevance than
elected politicians (Moe 1993; Jann and Wegrich 2007). Sometimes
these actors will oppose decisions they are supposed to implement and
thus block their execution (Haider-Markel and Taylor 2016). At other
times, they ignore the prescribed procedures or do not have the capacity
(resources, training, etc.) to implement the new legislative decisions

Downloaded from https://www.cambridge.org/core. Gothenburg University Library, on 14 Jul 2020 at 08:31:26, subject to the Cambridge Core
terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1743923X20000069
 ONLINE CRITICAL PERSPECTIVES 13

correctly (Corrales 2015). Meanwhile, conservative social actors (i.e., the

religious organizations or pro-life groups) acquire a new role as
protagonists. Actors who failed to prevent adoption of the reforms
redirect their efforts to the postadoption phase. Political losers “learn and
recoup” (Corrales 2015, 56) and reorganize their strategies to reverse the
reforms or block their implementation (Ball 2016; Wilson 2016).
Also, the coalitions that promoted the reforms do not necessarily remain
intact “the day after” the reforms. Historically, feminist and LGBTQ
organizations in Latin America have specialized in agenda-setting
activities, lobbying, and strategic litigation to achieve new rights (Blofield
2006; Corrales 2015; Dı́ez 2015; Fernandez Anderson 2017). However,
they are often less prepared to deal with the ensuing backlash and
less trained to monitor the implementation of the new policies
(Ball 2016; Haider-Markel and Taylor 2016). Thus, pro-rights actors
may lose power in the postreform phase vis-à-vis conservative actors. As a
way of contributing to this discussion, in the following section, we
present a typology that describes the different ways in which backlash
occurs in the cases of legal abortion and same-sex marriage policies in
Latin America.

CONCEPTUALIZING THE POSTREFORM STAGE

The backlash against feminist and LGBTQ agendas usually involves

actions carried out by individuals, groups, or organizations that seek to
undermine rights. Backlash may occur in the form of reactions during
the postreform phase aimed at totally or partially reverting the status quo.
We argue that backlash against legal abortion and equal marriage
policies can be better understood if two dimensions of the concept are
considered: the level at which the reaction occurs and the actors’ strategies.
Actors can operate at the macro or micro level. At the macro level, actors
are groups or organizations who operate at a systemic — municipal,
regional, national — scale. At the micro level, actors are individuals who
aim to obstruct policies in face-to-face relationships. Actors’ strategies can
be institutional or noninstitutional. Strategies are institutional when
actors use formal channels ( judicial, legislative, executive, administrative)
to express their opposition to new policies. Noninstitutional strategies are
informal and sometimes contentious. Table 1 shows the typology that
results from considering both dimensions and lays out some possible
instances that fit with each of the types.

Downloaded from https://www.cambridge.org/core. Gothenburg University Library, on 14 Jul 2020 at 08:31:26, subject to the Cambridge Core
terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1743923X20000069
 14 POLITICS & GENDER 16(1) 2020

Table 1. Typology of backlash against abortion and same-sex marriage policies

in the postreform stage

Strategies
Noninstitutional Institutional

Level Macro 2 “Street politics” (i.e., pro-life – Reversion in electoral arena

groups protests outside hospitals)
Micro – “Micro-resistances” (resistance
actions of doctors, judges, and
civil servants resulting from
prejudices; pseudo-
conscientious objectors)
(direct democracy)
– “Let it die” by authorities
– Litigation
– Conscientious objection/
religious exemptions by
implementers’ institutions
(i.e., private hospitals)
– Conscientious objection/
religious exemptions

In the noninstitutional macro-level cell, the main actors are social

organizations, such as religious organizations and pro-life groups. In the
case of legal abortion, usual “street politics” practices include protests
outside hospitals to prevent women from accessing abortion and to put
pressure on doctors (Wilson 2016). In Argentina, for example, after the
FAL ruling, this type of protest has been used to prevent abortions,
especially in conservative provinces (Gebruers and Gherardi 2015).1
Examples of noninstitutional micro-level backlash include micro-
resistances by actors who operate in the final stages of the policy
implementation process (e.g., doctors, judges, or civil servants). These
resistance actions involve brief and commonplace daily verbal,
behavioral, or environmental hostilities, intentional or unintentional,
resulting from prejudices and conservative attitudes toward members of
minorities (Nadal et al. 2011, 235). In Uruguay, for instance, social
activists determined that officials of the Civil Registry systematically asked
same-sex couples seeking a marriage license more questions (i.e.,
whether they plan to have children or the order of surnames they would

1. See “Escándalo por el aborto de una chica de 14 años discapacitada y abusada,” Perfil, August 27,
2018, https://www.perfil.com/noticias/sociedad/escandalo-en-san-juan-por-el-aborto-de-una-chica-de-
14-anos-discapacitada-y-abusada.phtml; and “La fuerza del engaño,” Página 12, August 27, 2018,
https://www.pagina12.com.ar/138166-la-fuerza-del-engano (accessed February 4, 2020).

Downloaded from https://www.cambridge.org/core. Gothenburg University Library, on 14 Jul 2020 at 08:31:26, subject to the Cambridge Core
terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1743923X20000069
 ONLINE CRITICAL PERSPECTIVES 15

choose if they had children) than they asked heterosexual couples.

However, these interview procedures are not established in the existing
legislation (personal interview with LGBTQ activist).2
Another type of backlash arises from “pseudo-conscientious objectors”
in cases of legal abortion. Pseudo-conscientious objectors are doctors who
do not formally declare an objection to abortion but refuse to perform the
procedure (MYSU 2017). Also, conservative functionaries may deliberately
misinterpret the law as a way to hamper access to rights. In Uruguay, for
instance, some judges initially used “gray areas” of the Equal Marriage
Law to deny adoption requests from same-sex couples (Sempol 2013).
In the institutional macro-level cell, the main actors are political parties,
executive and administrative authorities, judicial bodies, medical
corporations, and conservative social organizations. They use available
formal channels to promote policy setbacks. For instance, in Uruguay,
center-right parties, along with pro-life groups and the Catholic Church,
tried to repeal, by referendum, the law that decriminalized abortion
(Johnson, Rodrı́guez Gustá, and Sempol 2019).
In Chile, right-wing parties, supported by conservative social organizations,
went to the Constitutional Court during the second government of Michelle
Bachelet (2014–18) to overturn the law that decriminalized abortion. The
Constitutional Court refused to declare the law unconstitutional, but it
granted Catholic University of Chile “institutional conscientious objector”
status. This status, which the university authorities had sought, allowed this
institution to refuse to terminate pregnancies in its hospitals. Previously,
Congress had chosen to exclude institutional conscientious objection from
the law (Pérez Bentancur 2019).
In other cases, executive and administrative authorities “let the policy
die” during the implementation phase. Failing to adjust procedures and
administrative instruments to the new policy requirements (because of
lack of state capacity or political will to update them) is an instance of
this type of barrier. For example, in Argentina, lesbian couples faced
difficulties registering their children. While the Equal Marriage Law
states that birth certificates should record the birth mother and her
female spouse both as mothers (Article 36), the Buenos Aires City Civil
Registry listed the nonbirth mother only as a spouse, not as a mother.
Resistance to updating the procedure came both from the lack of
political will on the part of a subnational government opposed to the
reform and from cultural bias among members of the civil service (Red

2. Personal interview with LGBTQ activist, October 18, 2016, Montevideo, Uruguay.

Downloaded from https://www.cambridge.org/core. Gothenburg University Library, on 14 Jul 2020 at 08:31:26, subject to the Cambridge Core
terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1743923X20000069
 16 POLITICS & GENDER 16(1) 2020

Nacional de Familias LGTB con Hijos e Hijas and 100% Diversidad y

Derechos 2015). Meanwhile, in Uruguay, the passage of the Equal
Marriage Law did not result in the immediate modification of forms and
administrative registries, which continued to assume that all couples and
parents are heterosexual. Thus, a mother in a same-sex marriage would
be listed on the birth certificate as the “father” of her child or would
receive “paternal” leave instead of maternal leave.3
Finally, a well-known example of an institutional micro-level obstruction
is the systematic use of conscientious objection and religious exemptions
by individuals who opt out of participating in the implementation
(Haider-Markel and Taylor 2016) when these legal options are available
in the country.4 Although the laws assume that conscientious objection
occurs only in exceptional cases, in Uruguay and Chile doctors have
systematically used it to refuse to perform abortions (MYSU 2017).5 In
Uruguay, the use of conscientious objection has restricted access to
abortion procedures, especially for women living in impoverished
regions, far from the big cities (MYSU 2017).

AFTER REFORMS: A RESEARCH AGENDA

In this essay, we argue that what happens during the postreform stage is
critical to guaranteeing rights pertaining to legal abortion and same-sex
marriage. However, very little is known about what happens “the day
after” the decisions take place. As a contribution to this debate, we
propose a descriptive typology (Collier, LaPorte, and Seawright 2012) of
backlashes against legal abortion and same-sex marriage policies. We
intend this typology to be a first step toward an explanatory approach to
this issue in Latin America.
Future research on this matter should address other supplementary
questions: Under what circumstances will conservative actors choose a
particular one of these strategies/levels of intervention to block
implementation or to create setbacks for these policies? What are the
political and institutional conditions that enhance the ability of

3. Agencia EFE, “A cinco años del matrimonio igualitario, Uruguay avanza en derechos para LGBT,”
August 7, 2018, http://www.efe.com/efe/america/sociedad/a-cinco-anos-del-matrimonio-igualitario-
uruguay-avanza-en-derechos-para-lgbt/20000013-3676642 (accessed February 4, 2020).
4. Equal Marriage Laws in Uruguay and Argentina do not recognize this legal figure.
5. Corporación Miles rechaza aumento de objeción de conciencia en aborto, “MINSAL no puede
permitir que en sistemas de salud públicos se masifique,” June 11, 2019, https://www.theclinic.cl/2019/
06/11/corporacion-miles-rechaza-aumento-de-objecion-de-conciencia-en-aborto-minsal-no-puede-permitir-
que-en-sistemas-de-salud-publicos-se-masifique/ (accessed February 4, 2020).

Downloaded from https://www.cambridge.org/core. Gothenburg University Library, on 14 Jul 2020 at 08:31:26, subject to the Cambridge Core
terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1743923X20000069
 ONLINE CRITICAL PERSPECTIVES 17

conservative actors to block access to rights? What variables increase the

capacity of feminist and LGTB movements to monitor the
implementation of legal abortion and marriage equality policies? When
do progressive actors succeed at neutralizing reversal attempts carried out
by conservative actors? Further research should also analyze how these
different types of reactions affect access to rights. Preliminarily, it seems
that while macro-level reactions (especially institutional backlash) affect
rights in general, reactions at the micro level are selective. The latter
have greater effect on those who live in poor and conservative regions
and on individuals who cannot oppose public officials’ arbitrariness.
Finally, much of the opposition to these policies occurs at the
transnational level (Corrales 2015; ILGA 2019). Thus, a deeper
understanding of the phenomenon under study requires “scaling up” the
analysis to shed light on this dimension. However, public policy studies
of the implementation phase typically pay scarce attention to this level of
analysis. These are some of the critical theoretical-methodological
challenges researchers face in their efforts to develop this agenda. We
hope that further refinements of the typology proposed in this essay can
serve future attempts to advance knowledge in this area of inquiry.

REFERENCES
Ayoub, Phillip M. 2014. “With Arms Wide Shut: Threat Perception, Norm Reception, and
Mobilized Resistance to LGBT Rights.” Journal of Human Rights 13 (3): 337–62.
Ball, Carlos A., ed. 2016. After Marriage Equality: The Future of LGBT Rights. New York:
New York University Press.
Blofield, Merike. 2006. The Politics of Moral Sin: Abortion and Divorce in Spain, Chile and
Argentina. New York: Routledge.
Blofield, Merike, and Christina Ewig. 2017. “The Left Turn and Abortion Politics in Latin
America.” Social Politics 24 (4): 481 –510.
Collier, David, Jody LaPorte, and Jason Seawright. 2012. “Putting Typologies to Work:
Concept Formation, Measurement, and Analytic Rigor.” Political Research Quarterly
65 (1): 217 –32.
Cook, Rebecca J., Joanna N. Erdman, and Bernard M. Dickens, eds. 2014. Abortion Law
in Transnational Perspective: Cases and Controversies. Philadelphia: University of
Pennsylvania Press.
Corrales, Javier. 2015. “The Politics of LGBT Rights in Latin America and the Caribbean:
Research Agendas.” European Review of Latin American and Caribbean Studies 100:
53 –62.
Dickens, Bernard M. 2014. “The Right to Conscience.” In Abortion Law in Transnational
Perspective: Cases and Controversies, eds. Rebecca J. Cook, Joanna N. Erdman, and
Bernard M. Dickens. Philadelphia: University of Pennsylvania Press, 210– 38.
Dı́ez, Jordi. 2015. The Politics of Gay Marriage in Latin America: Argentina, Chile, and
Mexico. New York: Cambridge University Press.

Downloaded from https://www.cambridge.org/core. Gothenburg University Library, on 14 Jul 2020 at 08:31:26, subject to the Cambridge Core
terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1743923X20000069
 18 POLITICS & GENDER 16(1) 2020

Fernandez Anderson, Cora. 2017. “Decriminalizing Abortion in Uruguay: Women’s

Movements, Secularism, and Political Allies.” Journal of Women, Politics & Policy
38 (2): 221 –46.
Friedman, Elisabeth Jay, ed. 2019. Seeking Rights from the Left: Gender, Sexuality, and the
Latin American Pink Tide. Durham, NC: Duke University Press.
Gebruers, Cecilia, and Natalia Gherardi. 2015. “El aborto legal en Argentina: La justicia
después de la sentencia de la Corte Suprema de Justicia en el caso F.A.L.” Serie
Documentos 2, REDAAS. http://www.ela.org.ar/a2/objetos/adjunto.cfm?codcontenido=
2147&codcampo=20&aplicacion=app187&cnl=87&opc=53 (accessed February 3, 2020).
Grzymała-Busse, Anna. 2015. Nations under God: How Churches Use Moral Authority to
Influence Policy. Princeton, NJ: Princeton University Press.
Haider-Markel, Donald P., and Jami Taylor. 2016. “Two Steps Forward, One Step Back: The
Slow Forward Dance of LGBT Rights in America.” In After Marriage Equality: The Future
of LGBT Rights, ed. Carlos A. Ball. New York: New York University Press, 42–72.
Htun, Mala. 2003. Sex and the State: Abortion, Divorce, and the Family under Latin
American Dictatorships and Democracies. Cambridge: Cambridge University Press.
ILGA World. 2019. “State-Sponsored Homophobia: Global Legislation Overview Update.”
https://ilga.org/downloads/ILGA_World_State_Sponsored_Homophobia_report_
global_legislation_overview_update_December_2019.pdf (accessed February 3, 2020).
Jann, Werner, and Kai Wegrich. 2007. “Theories of the Policy Cycle.” In Handbook of
Public Policy Analysis: Theory, Politics, and Methods, eds. Frank Fischer,
Gerald Miller, and Mara Sidney. Boca Raton, FL: Taylor & Francis, 43 –62.
Johnson, Niki, Ana Laura Rodrı́guez Gustá, and Diego Sempol. 2019. “Explaining
Advances and Drawbacks in Women’s and LGBTIQ Rights in Uruguay: Multisited
Pressures, Political Resistance, and Structural Inertias.” In Seeking Rights from the
Left: Gender, Sexuality, and the Latin American Pink Tide, ed. Elisabeth
Jay Friedman. Durham, NC: Duke University Press, 48 –81.
Mansbridge, Jane, and Shauna L. Shames. 2008. “Toward a Theory of Backlash: Dynamic
Resistance and the Central Role of Power.” Politics & Gender 4 (4): 623–34.
Moe, Terry. 1993. “Presidents, Institutions and Theory.” In Researching the Presidency:
Vital Questions, New Approaches, eds. George Edwards, John Howard Kessel, and
Bert Rockman. Pittsburgh, PA: University of Pittsburgh Press, 337–85.
Mujer y Salud en Uruguay (MYSU). 2017. Los servicios de salud sexual y reproductiva y
aborto legal: Monitoreo 2013/2017: Sistematización de resultados de 10 de 19
departamentos del paı́s. Montevideo: Mujer y Salud en Uruguay.
Nadal, Kevin L., Marie-Anne Issa, Jayleen Leon, Vanessa Meterko, Michelle Wideman, and
Yinglee Wong. 2011. “Sexual Orientation Microaggressions: ‘Death by a Thousand Cuts’
for Lesbian, Gay, and Bisexual Youth.” Journal of LGBT Youth 8 (3): 234–59.
Pérez Bentancur, Verónica. 2019. “La polı́tica del aborto legal en América Latina.” PhD
diss., Universidad Torcuato Di Tella.
Pierceson Jason, Adriana Piatti-Crocker, and Shawn Schulenberg, eds. 2013. Same-Sex
Marriage in Latin America: Promise and Resistance. Lanham, MD: Lexington Books.
Red Nacional de Familias LGTB con Hijos e Hijas and 100% Diversidad y Derechos 2015.
2015. “Prácticas Registrales en Diversidad Familiar: Todas las familias con todos los
derechos.” https://100porciento.files.wordpress.com/2015/08/cuadernillo-buenas-prc3a1cticas-
regc3adstrales-final.pdf (accessed February 4, 2020).
Sempol, Diego. 2013. De los baños a la calle: historia del movimiento lésbico, gay, trans
uruguayo (1984–2013). Montevideo: Random House Mondadori, Editorial
Sudamericana Uruguaya.
Wilson, Joshua. 2016. The New States of Abortion Politics. Stanford, CA: Stanford University
Press.

Downloaded from https://www.cambridge.org/core. Gothenburg University Library, on 14 Jul 2020 at 08:31:26, subject to the Cambridge Core
terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1743923X20000069