INTRODUCTION
In the last few years, constitutional theory has caught up with research on law and social movements.1 Mobilized citizens are increasingly perceived as a fundamental part of the social processes through which law gets its meaning. The regulation of abortion in Argentina, as elsewhere, is one of the legal issues whose settlement is disputed by a dissenting citizenry, whether it is to knock down the rules currently in place or shield them from change. While this story is long and complex, this paper tells a small yet important part of it: the way in which Catholic legal scholars shaped the constitutional narratives of the pro-life movement. This focus—part of a larger study on abortion politics in Argentina—shows the intersection of legal scholarship and social movements politics. It also shows the presence of what Robert Cover described as the “depth of field” that law lends to those committed to social transformation that allows reformers to seek “insistent and immediate” demands while keeping a broader, more ambitious vision as the ultimate goal that explains and justifies daily struggles.2 I move forward in the following way.
In the first part, I briefly describe the Catholic normative world-view on human reproduction that explains its commitment to protecting life since the moment of conception. It is an important point, often taken for granted: Catholic belief in the “sanctity” of human life is deeply rooted in an entrenched and rigid theology that competes with secular laws for normative superiority. Taking this point as necessary preface, the second part describes the ways in which that commitment was translated into legal arguments by Argentinean Catholic legal scholars towards the end of the 1970s and early 1980s. Their works shaped the narratives of the then up-and-coming pro-life movement, closely connected to the Catholic Church.3 This part provides a birds-eye view of a period in which Catholic legal scholars sought to shape the status of life as a juridical good in the Argentinean legal order. It describes arguments produced to advance concrete legal developments in which their substantive normative commitments were at stake. The section places this academic endeavor in a more general context of Catholic mobilization in the 1980s and 1990s. The third part discusses the significance of these findings from the point of view of two urgent concerns of constitutional inquiry: disagreement in pluralist societies and citizens’ role in shaping a shared legal order.
A. THE CATHOLIC NORMATIVE WORLD ON HUMAN REPRODUCTION
It is known that human sexuality and reproduction are a matter of interest for the Catholic Church. It stems from moral and political reasons regarding the natural order of society and from centuries’ old theological questions with uncertain answers. This part will briefly describe the nature of these concerns and how—together—they shape the Catholic stance towards contraception, abortion, and women’s role within society.
As García de Haro put it, writing in the pages of Catholic legal journal El Derecho in 1989,4 marital love and procreation are “inseparable”, for it is within marriage (and only within marriage) that men and women can cooperate and participate in God’s creative power.5 For the Catholic faith, human reproduction is not entirely (or not exclusively) “human”: it is the main way in which God acts as a creator. The intercourse between husband and wife is the “space” in which God is allowed to exert its generative power, for all humans are created by God himself.6 This is why contraception is condemned: it is a way of preventing God’s will.7
The connection of this doctrine with the foundational narrative of Judaism and Christianity captured in Genesis should be obvious for the piously educated reader: the original sin was a sin of disobedience and hubris. The quid-pro-quo offered for violating God’s mandate was to be “like gods who know what is good and what is bad” (Gn 3: 5-8). Contraception, insofar as it seeks to exert human will over God’s, participates in the nature of that first sin. It goes against the mandate of reproduction (Gn, 1:28) and, since it is a form of renouncing the chance of procreation within marriage, it repudiates the generally positive stance towards sex (within marriage) developed by the Church at least since Augustine of Hippo, who developed this position as a reaction against Manichean teachings in the fourth century.8 This stance and this rule remained more or less constant throughout the Church’s history,9 especially after birth control was proposed as a necessary measure in the midst of Malthusian fears at the turn of the nineteenth century.10
By the 1930s, the Catholic Church’s commitment to this principle became almost an identitarian trait. As the Anglican Church stepped back from its absolute prohibition of contraception,11 Pope Pius XI in Casti Connubi ratified the Church’s condemnation of active measures to prevent child-bearing within marriage. He also elaborated on the “Christian family” as the institution in which God’s creative power was to be realized. The encyclical letter affirmed the “primacy of the husband with regard to the wife and children, the ready subjection of the wife and her willing obedience….”12 It ratified the old Augustinian principle according to which intercourse “with one’s legitimate wife is unlawful and wicked where the conception of the offspring is prevented.”13
As Noonan put it, the “development of doctrine is rarely a logical necessity. It is a response of the Christian community to meditation on the Scripture and to the pressures of the environment.”14 As social change accelerated in the second half of the twentieth century, the Church revisited its position. In 1958, for instance, Pope Pius XII considered that if “a woman takes this medicine [anovulants], not to prevent conception, but only on the advice of a doctor as a necessary remedy because of a disease of the uterus or the organism, she provokes an indirect sterilization, which is permitted according to the general principle of actions with a double effect.”15 Amidst the Second Vatican Council, the Catholic Church acknowledged the needs of couples to control the number of children they bear, but ratified the moral condemnation of abortion as an “unspeakable” crime.16 The encyclical insisted that, once conception has happened, “life must be guarded with the greatest care.”17 However, it allowed for some room to think about the morality of new birth-control methods.18
This period opened a debate that was carried out in the Pontifical Commission on Birth Control.19 Two positions came up. One, conservative, rejected contraception as inherently immoral and against the teachings of the Church; another position, more progressive, considered that married couples should not be condemned to “prolonged and frequently heroic abstinence.”20 This debate was closed in 1968 by the encyclical Humanae Vitae.21 There, Pope Paul VI insisted on highlighting the link between procreation and sexual intercourse within the holy institution of marriage. For the Pope, “every marital act must of necessity retain its intrinsic relationship to the procreation of human life.”22 For that reason, artificial contraceptive methods were rejected. Abortion and sterilization were especially condemned and “absolutely excluded as lawful means of regulating the number of children.”23 As Felitti recalls, this move settled one of the main disputes within the Church during the 1960s. Since Humanae Vitae, Catholics have had clear guidance on matters of sex and reproduction.24
B. CATHOLIC SCHOLARS AND THE PRO-LIFE NARRATIVE (1978-2006)
The previous section briefly described hundreds of years of the Church’s positions on sexual mores and human reproduction. Throughout its history, the Church held on to its moral condemnation of abortion and contraception, and even though it briefly discussed modern contraceptive methods in the 1960s, they were rejected in 1968.
At the time, Argentinean law supported the Church’s position. The 1853 Constitution had a strong commitment to population growth, a fundamental premise of the founding generation.25 The 1871 Civil Code recognized that legal personhood began in the moment of “conception in the mother’s womb” and—as in most countries of the West—abortion was a crime, codified in the Criminal Code of 1921 except in two cases: when the abortion had been carried out “with the goal of preventing a danger for the life or health of the mother and if this danger cannot be avoided by other means” and if “the pregnancy stems from a rape or a sexual attack committed on an idiot or demented woman.”26
For most of the century, it was a crime in theory with little consequences in practice: abortion services were widely available, and women regularly used them.27 However, the illegal nature of the practice forced women to do it in secrecy.28 Poor sanitary conditions in the midwives’ quarters in which poor women sought assistance often meant infections, sickness, hospitalization and death (or judicial inquiries). Towards the 1960s, the disparate impact of prohibition between poor and middle-class and rich women was questioned—somewhat avant la lettre—by a handful of judges in the courts of Buenos Aires.29 Towards the early 1970s, this situation—broad social hypocrisy and a law that played mostly a symbolic function—was challenged by an up-and-coming women’s rights movement that, for the first time in Argentina’s history, demanded the legalization of abortion.30
It is within this context that the activism of Catholic legal scholars should be understood. Writing started timidly towards the late 1970s, reacting to the success of in vitro fertilization.31 But it was in the 1980s and 1990s that production both intensified and managed to shape the legal and constitutional narratives of the pro-life movement. This “increased commitment” could be explained by rapid social change and the relaxation of sexual mores, which in other countries had led to the liberalization of abortion laws,32 as well as by the Church’s strengthened position espoused in Humanae Vitae. But perhaps the more plausible explanation is the rise of the pro-life social movement, supported by the Church but formed mainly by Catholic laymen and women who organized as “a preventive action in the face of the possible emergence of the right to voluntary abortions as a public debate issue.”33 The story of this movement goes beyond the scope of this article, but its gains in the legal field—especially in the 1980s and 1990s—were supported by the legal arguments and discourses that Catholic scholars produced and that this article discusses.
Before moving forward, a point on method. This research is part of a broader inquiry into the history of abortion politics in Argentina. The Catholic scholarship I review was identified through archival research on the three main law reports of Argentina.34 I moved systematically through the so-called repertorios: volumes that include the summaries of cases and the list of law review articles published in previous years. My intuition before research was that Catholic legal scholarship was going to be found mainly in El Derecho, for it is owned by the Pontificial Catholic University of Argentina and generally prints the scholarship produced there.35 Research confirmed this intuition: while abortion was discussed by scholars in Jurisprudencia Argentina36 and La Ley,37 most of it was about narrow criminal law controversies over interpretation and matters of evidence. It is in the pages of El Derecho that the arguments that the prolife movement would embrace first appeared, roughly following the evolution of the pro-life movement itself.38 I move forward discussing this scholarship against the backdrop of the legal gains and defeats the pro-life movement experienced in a period of thirty years, which can be divided into two broad cycles: one of triumph (1980s-1990s) and one of defeat (2000s).
1. Moments of Triumph
At first, Catholic scholars were worried about defining the status of life in the legal order. One of the first to address the matter from a constitutional perspective was Germán Bidart Campos, who in 1985 published two brief comments, one regarding a judicial request to authorize an abortion in the cases prescribed by law (which was refused, on the grounds that the Criminal Code placed that decision within physicians and their patients) and another one in which he argued about the constitutional nature of the right to life.39 In the latter note, Bidart Campos argued that the right to life “flows implicitly from Article 33 of the Constitution”, and even without such a constitutional rule it should be considered included in virtue of the American Convention on Human Rights and the case-law that had “recognized” and “preeminently valued” this right.40
These early arguments on the protection of life began to influence legal developments. For instance, in the late 1980s and early 1990s several provincial constitutions were reformed and explicit pro-life guarantees were adopted.41 In 1988, a public defendant successfully prevented the interruption of a pregnancy of a girl with mental disabilities who had been raped.42 The official argued that there were no therapeutic reasons to interrupt the pregnancy and considered that the cause of “rape” prescribed in Article 86 was limited to “idiot or demented” women and had clear eugenic undertones.43 Implicitly hinting towards the unconstitutionality of Article 86, the defendant posed that the unborn child had a “right to live, and that right to-be-born was a necessary expression of the former.”44 Catholic legal scholars commenting the case celebrated the decision.45
The 1989 election of Peronist Carlos Menem was an important milestone in the pro-life movement, for the president quickly aligned with the Church on matters of morality.46 For instance, upon signing the Convention on the Rights of the Child, Argentina issued a declaration in which it stated that “a child means every human being from the moment of conception up to the age of eighteen”. Furthermore, during the 1994 amendment process, a small but loud pro-life caucus within the Convention unsuccessfully tried to entrench the right to life since the moment of conception in the Constitution, in an unexpected move that derived in the ambiguous provision of Article 75.23.47
Throughout the 1990s, Catholic scholars kept contributing arguments that pro-life activists and legislators used in facing difficult issues: when discussing bills proposing to regulate in vitro fertilization,48 when considering the status of life under international law after the 1994 amendments,49 or when discussing legal decisions that refused to authorize legal abortions.50 These arguments were used in litigation campaigns launched by activist Catholic lawyers and civil society organizations.51 For instance, in 1999 the Rabinovich litigation campaign managed to heavily restrict in vitro fertilization techniques in the city of Buenos Aires in the face of Congressional silence.52 The arguments on the beginning of life and the legal consequences extracted from that fact were instrumental in the decision. Perhaps one of the clearest triumphal moments of the pro-life movement came in 2002, when the Supreme Court in the case of Portal de Belén declared that emergency contraception methods were “unconstitutional”, in a clear and ambitious pro-life ruling.53 The right to life since the moment of conception was read into the Constitution by the highest court in the land.54
For Scala and Elorrio, the decision had “definitely resolved the question on the moment in which the juridical protection of every human being begins in Argentina.”55 Furthermore, they argued that this particular case-law was written in stone, for it was the reasonable outcome of every possible approach to the issue: from natural, positive and international law.56 Scala and Elorrio considered that not even a constitutional amendment could adopt a different criteria, for “international human rights law is above internal law” and the principle of “progressiveness” in international law commanded such a conclusion.57 They argued that “it is juridically impossible to modify in our country the doctrine defined by the Supreme Court in the case ‘Portal de Belén’; that would be impossible through international convention, through legal or constitutional reform, and even through another decision by the Court that would be inherently null for reasons of res iudicata.”58
2. Facing Defeat
The writing on the period was not, of course, exclusively celebratory: women’s rights advocates had made gains of their own, especially in the legislative arena. After the 1994 amendment process, which had given constitutional hierarchy to the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), several provinces adopted sexual and reproductive health legal frameworks to guarantee access to contraception (Table 1). These laws were generally opposed by Catholic scholars.59 For instance, Meincke argued that they were a consequence of the “Malthusian and eugenic ideas of Darwin, Spencer and Galton” and linked the trend to an international agenda of reproductive control that went from the first International Conference of the International Planned Parenthood Foundation held in Dacca in 1967 to the Population Conference in Cairo that took place in 1994.60
Meincke’s position on these laws is interesting because it reveals a more general concern in the pro-life movement. Its main argument has always been based on a simple syllogism: life exists since the moment of conception, and life protection necessarily follows from the application of conventional legal principles.61 But something more is at stake: the laws guaranteeing access to contraception are perceived to be a first step towards the legalization of abortion.62 Furthermore, they were read as part of a more comprehensive attack on the Catholic ethos on sexuality and human reproduction. For Meincke, these laws frame sexuality as “mere genitalia,” a viewpoint that fails to grasp its spiritual dimension.63 Unwanted pregnancies can only be prevented “within marriage, open to procreation, and through learning the natural methods for controlling reproduction which tend to the good of the family.”64
By 2002, Congress had adopted its own sexual and reproductive health framework.65 And while the pro-life narrative was strong, as the Portal de Belén decision showed (2002), several developments concerned Catholic legal scholars. For instance, in 2001, a case quickly made it from a trial decision to the Supreme Court in a matter of weeks. The case involved a pregnancy in which the unborn child had been diagnosed with anencephaly, a condition that made life outside the uterus impossible. Grieving parents sought to have the pregnancy interrupted, and courts conceded the request. However, because the pregnancy was already in an advanced stage, judges carefully crafted the decision as one involving not an “abortion” but a “moving ahead” of the delivery date.66 The Supreme Court went to lengths to assure that “this is not a case about abortion” and that the decision “fully respects life from the moment of conception.”67 But Catholic scholars saw the “risk involved in the wrongful use of the decision as jurisprudential precedent.”68
Cases of anencephalic pregnancies kept piling up and eventually led to regulation.69 Furthermore, in the early 2000s, women’s rights advocates intensified their pressure on Congress to address the matter of “illegal abortions,” and cases involving the conditions for “legal abortions” prescribed by Article 86 kept reaching the media. These cases usually involved young girls who had been raped by family members or by close acquaintances, girls as young as eleven years old.70 Courts began to slowly shift their approach and moved from a non-intervention position to a more protective stance in cases involving the rape of minors.71 In 2008, a case came up in the city of Mendoza,72 another one in the city of Paraná, Entre Ríos;73 in 2010, in the province of Chubut74 and in Córdoba;75 in 2012, in the city of Buenos Aires.76 These cases were too controversial and widely debated in the press. For instance, in the Paraná case, after a court granted the request, physicians refused to perform the abortion based on objections on conscience grounds: the procedure was carried out in Mar del Plata, a coastal town more than 800 kilometers away.77 In the Buenos Aires case, the Mayor announced that the procedure would be carried out, and a pro-life lawyer obtained an injunction against the practice.78 In the case of Moreno, the refusal of provincial authorities and hospital administrators to intervene forced the victim to seek an abortion in a private clinic in the city of Buenos Aires.79 These decisions were harshly criticized by Catholic scholars.80
Women’s rights advocates, on the other hand, kept on pushing for reading in Article 86 a rights-granting provision.81 And Catholic scholars reacted to both the doctrinal proposals and the increasingly clear judicial trend. Nicolás Lafferriére, for instance, cautioned against this move that had already been employed successfully in Brazil by women’s rights advocates.82 The same insight was shared by other pro-life scholars.83 These works deployed a wide array of strategies to push back against reform: from the reaffirmation of the constitutional standing of the right to life to interpretative exercises of Article 86.2 that sought to recall its eugenic origin and make it, thus, unconstitutional.84 A certain sense of urgency and sieged fortress comes from these works. Take, for instance, Del Cerro and Junyent Bas’ closing argument for considering Article 86.2 unconstitutional.
“In our days, when proposals range from including new cases of exceptions to the rule that punishes abortion, to the most complete decriminalization of the crime, our proposal appears bold and even provocative. But we cannot remain silent about such a blatant contradiction in our juridical order. We either defend the fetus for considering it a person and, consequentially, abortion is a crime that attacks the supreme value of life, supreme in our juridical lexicography of values; or we are content with a mediocre position that seeks to reconcile that which cannot be reconciled. Indeed, the contradiction we are speaking about … appears as evident. In the name of the right of the mother the worst crime is proclaimed. We cannot remain silent, this is not about negotiable values, we cannot forget that behind every abortion there is a person, a child that cannot express in any way his or her position on the matter, a voice that cannot speak but that, paradoxically, can be heard … It hurts to live in a society where those who defend the rights of some, step without hesitation on the rights of others. It hurts that those who should defend life are many times the ones who respect it the least. It hurts that those who should show compassion, for having themselves suffered a traumatic experience of injury, are willing to imitate their murderers and turn another innocent into a victim. It hurts the excuses of a world that does not understand the miracle of a new life and hence condemns it. It hurts not being capable of screaming at them that I too was once a defenseless being and that I do not believe to have the duty to thank my mother for the fact that she has fed me and took care of me for nine months, for what I would thank her is that she did it with joy, enthusiasm and above all, love, giving me day after day a portion of her life. It hurts that a son must depend on the will of his father, or the difficulties—even if true—of her mother. How can be so difficult to understand that the son, even he who has not been wished, ennobles the mother who gave him life, it does not degrade it, it is sublime, it shows the power of love that heals and restores” (emphasis added).85
C. LAW, DEMOCRACY, AND DISAGREEMENT
The 1980s and 1990s was a period of intense scholarly production in Catholic legal circles in Argentina, in which the main constitutional narrative of the pro-life movement was developed: life exists since the moment of conception for reasons of science, and the protection of life follows on constitutional grounds, according to conventional legal principles. This reading was ratified by provincial constitutional law in the late 1980s and early 1990s and by the Supreme Court in 2002. But it was also challenged by a mobilized women’s rights movement that rejected this absolutist reading and pushed for access to contraception, sexual education, and the rediscovery of Article 86 as a rights-granting provision. This argument eventually triumphed in 2012, when the Supreme Court disavowed Portal de Belén and read into Article 86 of the Criminal Code a right to interrupt a pregnancy under certain circumstances, that courts should guarantee.86 Catholic scholar and pro-life advocate Rodolfo Barra described the decision as “our Dread Scott.”87
Under the light of democratic constitutionalism, the process previously described makes a lot of sense.88 First, as Siegel puts it, in creating juridical meanings citizens follow two conditions that constrain the form and type of arguments that are deemed acceptable.89 The consent condition forces citizens to seek to persuade public officials because they “cannot achieve change through coercion.”90 The public value condition, on the other hand, treats the Constitution as a common language: in order to persuade, citizens must present their constitutional vision “as required by the principles and as resonant with the memories that comprise the nation’s constitutional tradition.”91 Second, it engenders a kind of democratic dialogue between citizens and public officials, mediated by social movements in what Post describes as an “iterative relationship between law and politics.”92 What does the review of the pro-life movement constitutional narratives reveal from the standpoint of these tenets of democratic constitutionalism?
First, both the consent and public value conditions were met by the pro-life movement. The Constitution was embraced, the human rights framework—so dear to Argentina and its process of transition to democracy—was used.93 This “strategic secularism” of the movement94 implied a translation of deeply held religious convictions on the sanctity of human life and reproduction into legal terms. But often, the traces of said translation emerged. The narratives developed to win the day in court or to persuade public officials to act one way or the other hide broader, more ambitious normative commitments that are refrained from the public sphere because they do not pass the threshold of what is acceptable in democratic deliberation. This is related to Robert Cover’s “depth of field” effect the law has on social movements, that allows certain concrete and specific struggles to stand in “the shadow of the millennium.”95
Catholic legal scholarship reveals this feature in particularly clear ways: authors often go back, implicitly or explicitly, to the moral, social and theological reasons that sustained the Catholic Church positions on these matters for thousands of years. It is there in Meincke’s argument about the sexuality implied by reproductive health-care laws96, and it is there in the sadness with which Junyent Bas and Del Cerro discuss a “world that does not understand the miracle of a new life and hence condemns it.”97 There is a thread that unites the absolutist reading of the Constitution with the readings of other texts that claim a different, arguably more important, kind of supremacy. This a feature democratic constitutionalism acknowledges. As Siegel puts it, even if citizens are “animated by beliefs and commitments rooted in a community’s discrete normative universe”, they “cannot secure recognition of its constitutional claims through these same forms of arguments … To persuade citizens outside its ranks or officials in government to recognize its claims, the movement must express its values as public values.”98 And yet, it is uncertain the extent to which these public values better serve the democratic process than the raw expression of partisan positions and desires. Presumably, the dispute over the values that we share as one political community can bring us closer together, but the specific jurisgenesis analyzed here suggest otherwise — the absolutist constitutional narrative the pro-life movement developed was meant to settle the issue, not to encourage dialogue over disagreement.
Second, the dialectic back and forth between citizens and public officials, mediated by partisan social movements, was also present. While the pro-life movement made gains in the provincial constitutional reforms of the 1980s and 1990s and exploited the strong alignment of the 1990s Peronist administration with the Church, the women’s rights movement also succeeded in fencing-off the pro-life caucus in the Constitutional Convention of 1994 and—more significantly—managed to slowly build a case for reproductive freedom in the sexual health and reproductive laws of the second half of the 1990s. They challenged the constitutional narrative of the pro-life movement and—in F., A. L.—they successfully convinced the Court to disavow it.
This dialectical contest to capture “sites of norm articulation”99 is a very unstructured practice, that in the case of abortion in Argentina led to contradictory decision-making and increased legal uncertainty. Under democratic constitutionalism, this uncertainty can be explained, for it is related to the disputed and shifting border that separates law from politics, that is especially precarious where disagreement is as deep as in this case. As Post puts it, law is a social practice that presumes agreement and politics is a social practice that presumes disagreement. But they are “both independent and interdependent”.
“They are independent in the sense that they are incompatible. To submit a political controversy to legal resolution is to remove it from the political domain; to submit a legal controversy to political resolution is to undermine the law. Yet they are interdependent in the sense that law requires politics to produce the shared norms that law enforces, whereas politics requires law to stabilize and entrench the shared values that politics strives to achieve. This suggests that any given controversy can be given legal form when we wish to act as if we had reached agreement about the meaning and implementation of a relevant social principle. Yet any discrete legal principle can also reassume political form whenever we discover that our putative agreement is chimerical and that we wish to create a valorized space for further disagreement.” (emphasis added).100
The pro-life constitutional narrative that this article has analyzed sought to submit the political controversy over abortion to “legal resolution” and thus to “remove it from the political domain”. It sought to push abortion into the sphere of the undecidable, that implies both a “political impossibility of revocation” and a “private impossibility of transaction.”101 That was the explicit role Portal de Belén was supposed to play if Scala and Elorrio had succeeded in their argument.102
The social movement politics here described shows an erratic decision-making process and a persistent failure of Congress to revisit the legal settlement that was based—in Post’s terms— in a fictional agreement.103 The extent to which this process was the best possible available is beyond the scope of this article and has to do with the institutional arrangements we have (and the way they fail to perform under stress). But perhaps the absolutist constitutional narrative developed by the pro-life movement and Catholic legal scholars contributed to that failure. This is difficult to establish: party cleavages and a territorial divide between conservative and progressive provinces appear as more plausible reasons for this outcome. But the legislative debate of 2018 showed the way in which lots of pro-life advocates engaged the challenge: as an already settled issue, as a decision Congress could not make.104 In the act of translating into legal terms their deeply held moral principles on human sexuality and reproduction, Catholic scholars passed—through the translation itself—the normative superiority that religious texts demand for themselves to the constitutional arguments they produced.
CONCLUSION
Catholic legal scholars were instrumental in shaping the main constitutional narrative of the pro-life movement in Argentina. It was simple and effective. As a legal principle, it was meant to play the function of a trump card and leave the issue outside the realm of politics. This narrative paid off for a while, but was not enough to prevent politics from getting back in. In that sense, the contrast with the strategy developed by the women’s rights movement is stark: the latter sought not to have the issue settled by the Constitution but proposed a reading according to which the Constitution allowed Congress to legalize abortion.
This story, which here has been summarized, fits the main tenets of the democratic constitutionalism of Reva Siegel and Robert Post. Citizens mobilize to have their normative viewpoints adopted by the state in paths of reform that follow what Robert Cover called redemptive constitutionalism.105 For these movements, it is not enough to live the life our normative commitments tell us to live; it is also essential that our community abides—as well—with them. In doing so, they translate these commitments into language others can accept as legitimate and push for some sort of dialogue between public officials and citizens that, somewhat chaotically as we have seen in the case of abortion politics in Argentina, shape the way institutions process social demands in the context of disagreement.
Democratic constitutionalism, however, seems to be agnostic to the kind of legal narratives developed by citizens in pursuit of their social ideals. The public value condition is supposed to constrain the kind of arguments citizens develop, but this seems to be less of a tight grip than a gentle nudge. Do we lose something in this act of translation? Is the political process better served by absolutist legal narratives that claim that a complex issue crossed by disagreement is already settled or would it be better off if the democratic process would consider all the visions at stake, including its most partisan incarnations? Absolutist narratives such as the one analyzed here raise the stakes of the constitutional game by making gains and losses more substantial. As Greene recently argued, this might be detrimental to the way we address complex issues, for this way of thinking about the Constitution may impair our ability to work through complex disagreements about rights and justice.106 If so, democratic constitutionalism should consider that perhaps citizens’ jurisgenesis is less desirable (or, to put it differently, more problematic) in constitutional cultures that embrace these sorts of arguments, for they obstruct—rather than assist—the political process capacity to address the issue at hand.
This assessment looks different, however, from the point of view of raw social movement politics. The pro-life narrative was extremely useful and powerful when jurispathic state institutions embraced it to make important legal decisions.107 The narrative not only “delivered” in terms of gains throughout the 1990s, but was also instrumental in limiting the victories of their adversaries, whether by restricting the scope of reproductive health-care laws108 or by mobilizing different kinds of actors willing to obstruct F., A. L.’s remedies.109 In that sense, the legal narrative developed in the 1980s and 1990s remains—to this day—a fundamental part of the framing of the pro-life movement, that the Supreme Court disavowed but failed to kill.110 It proved to be alive and well in provincial courts111 and during the legislative debate of 2018 and 2020.112 The way the Constitution is to be read remains an open question. But after F., A. L. this absolutist reading seems to be facing an uphill battle. The Supreme Court rejected it and Congress implicitly did the same: the mere fact that it discussed a legalization bill in 2018 shows that most representatives believe that the legalization is a decision Congress could make. The pro-life narrative may have served the purpose of holding the pro-life caucus together and— judging from the outcome of that legislative process—it may have paid off. But it remains to be seen though, whether the movement can hold on to its simplicity in the future.