A Review of Sex and the State: Abortion, Divorce and the Family Under Latin American Dictatorships and Democracies

Abortion, Divorces and Gender Equality

Sex and the State: Abortion, Divorce and the Family Under Latin American Dictatorships and Democracies By Mala Htun New York: Cambridge University Press, 2003.

Abortion, divorce and gender equality in the family are three of the most controversial policy issues that Latin American governments have faced in the twentieth century. Yet for too long, policymakers, academics and ordinary citizens have assumed that these issues pertain exclusively to women and families, a view that has contributed to their marginalization. InSex and the State, Mala Htun reframes these issues to highlight their relevance to politics more generally. She asserts that the failure of governments to regulate these issues effectively affects not only the status of women; it also reveals a fundamental weakness in the state’s ability to protect vulnerable citizens. Ultimately, this constitutes a troubling limitation to the consolidation of democracy.

Sex and the State argues that distinct logics guide the outcome of policy debates on gender-related issues. Drawing from careful historical research and interviews with hundreds of policy makers in Argentina, Brazil and Chile, Htun provides a fresh analysis of these enduring policy debates. She invokes three factors to explain variation in policy outcomes. First, the issues themselves vary in terms of their salience and how much passion they arouse. Civil code reform is a “technical” issue that can be resolved far more easily than the “absolutist” issue of abortion. Second, outcomes vary in terms of the institutional venue in which decisions are made; the more public the discussion, the more difficult it will be to resolve. Finally, gender-related issues hinge on the degree of opposition from the Catholic Church and the influence that the Church wields in a particular context.

The first two chapters introduce these theoretical concepts but they are also substantively very rich. The material these chapters cover is broadly relevant to all kinds of political issues in Latin America; they illustrate important trends in Latin American intellectual history and warrant being read by a large audience. A section on Latin American legal systems explains the particularities of the civil law system for a common law audience, emphasizing the “thick normative content” of legal systems in the region. Sections on Catholicism, liberalism, feminism and socialism provide a nuanced genealogy of each of these strains of thought and demonstrate the ways in which they shaped debates about gender equality. The analysis of feminism is an excellent primer for those unfamiliar with recent scholarship.

Each of the four main chapters focuses on a particular puzzle. Chapter Three examines why conservative military governments in all three countries adopted policies that expanded women’s equality within the family. Htun explains this in terms of the technocratic approach that military leaders took to achieve their goal of modernizing the state. Military leaders delegated the task of reforming the civil code to teams of expert civilian lawyers. The process of deliberation took place behind closed doors, which insulated the more egalitarian lawyers from the socially conservative leaders who appointed them, and led to unintended policy outcomes.

Stating this argument in slightly different terms leads me to challenge Htun’s position, although the evidence she provides is sufficiently rich to suggest an alternative explanation. The book maintains that military leaders accepted outcomes they opposed because they were bound by the institutional arrangements they had put in place to generate those outcomes. But dictators do not necessarily behave this way; a penchant for capriciousness is what makes them dictators. Perhaps civil code reforms succeeded in Argentina and Brazil because the policy preferences of military leaders in those countries closely matched the preferences of the lawyers whom they appointed. In Chile, Pinochet’s views on women’s rights diverged dramatically from those of the reform commission members (this issue received widespread media coverage at the time), so the reform effort stalled. Gender issues were also more salient in Chile because a highly mobilized constituency of conservative women provided a fundamental source of legitimacy for Pinochet.

Htun’s second puzzle is why Chile remained one of a handful of countries in the world that forbid divorce. She explains this in terms of differences in the relationship between the state and the Catholic Church. In Brazil, the military regime passed a divorce law to punish the Church for its opposition to the government, opposition rooted primarily in its stance on human rights. In Argentina, the democratic government passed a divorce law to punish the Church for its support of the military government. In Chile, Pinochet supported the Church’s view on divorce, and a close alliance between the Church and the democratic government prevented the passage of divorce legislation until very recently. After the transition, progressive politicians declined to endorse a divorce law out of deference and gratitude to the Church for the critical role it played in protecting human rights during the dictatorship.

The chapter on abortion is the most provocative of the book. The failure of Latin American countries to reduce restrictions on abortion contrasts not only with the more liberal policies of most countries in North America and Western Europe, but also with the far more liberal policies that Argentina, Brazil and Chile had in the early twentieth century. On the one hand, Htun argues that the outcome of debate on abortion reflects the deeply personal views of individual policymakers and thus defies efforts to develop or test general theoretical claims. Thus, abortion politics are unique because of the highly charged moral nature of the issue. On the other hand, Htun highlights the economics of abortion. For middle-class women, abortion is de facto guaranteed because they can afford to pay for illegal abortions safely performed in private clinics. Restrictions on abortion primarily harm poor women, but their poverty makes it difficult for them to mobilize in support of reform. Therefore, the key to the abortion issue lies in the moral hypocrisy of the ruling elites. This boldly stated argument is likely to arouse controversy, but ultimately may reframe the debate in productive ways.

Sex and the State reveals a deep understanding of the complex array of factors that have shaped these debates in the Southern Cone. These analytically important findings provide clear policy prescriptions and speak to important debates within the literatures on legal reform, gender and politics, public policy and democratization. Intriguing puzzles, substantive breadth, well-executed research and provocative findings make Sex and the State one of the very best books available on gender and politics in Latin America.