Three years after the Supreme Court ruling which sought to ensure the application of the law in cases of non-punishable abortion, a report by ADC (Civil Rights Association) shows that the majority of the Argentine provinces are not complying with the guidelines set out by the court.
ADC has urged Health Minister Daniel Gollán to guarantee access to legally-allowed abortions by giving the national guidelines issued by his Ministry the rank of a ministerial resolution, and by “taking adequate measures to eliminate the countless barriers that women face when requesting an abortion in the cases expressly allowed by law.”
The ADC report found that “over half of the country’s jurisdictions still do not have regulations to effectively ensure the exercise of a right that women enjoy since 1921.”
The case known as ‘F.,A.L.’ set a crucial precedent in the struggle for reproductive rights in Argentina. On 13th March 2012, the Supreme Court affirmed the right of a 15-year-old girl who had been raped by her stepfather to have access to an abortion, as set out in article 86 of the criminal code.
The girl had been allowed to terminate her pregnancy on 8th March 2010 by Chubut’s Supreme Court, and the procedure was carried out on 11th March 2010 in the city of Trelew. Afterwards, the General Advisor to the Chubut government filed a lawsuit before the national Supreme Court on behalf of the ‘nasciturus’ (the unborn).
Two years later, the Supreme Court issued a ruling which sought to clarify the reach of article 86 of the Criminal Code for future instances, and it encouraged the provinces to put mechanisms in place to ensure the law is upheld.
Controversies had arisen in the application of the law on non-punishable abortions, as the Criminal Code (dating back to 1921) states that an abortion can be carried out when the life or health of the woman is in danger, and when the pregnancy is the result of rape “against an idiot or demented woman”. In its F.,A.L. ruling, the Court understood that abortions are allowed in all cases involving a non-consensual sexual relation, regardless of the intellectual capacity of the woman, and that there is no need to have the authorisation of a judge or a police report in order to carry them out.
The ruling also urges “the national and provincial authorities to implement and make operational, through regulations of the highest level, hospital protocols for the concrete attention of non-punishable abortions with the aim of removing all administrative or factual obstacles to the access to medical services” and “the national and provincial judiciaries to abstain from taking to court the access to non-punishable abortions as set out by law.”
The measures envisaged by the Supreme Court to remove all obstacles to the access to non-punishable abortions include removing the requirement of a judicial authorisation (a sworn declaration by the victim is enough), the elimination of all administrative requirements that could delay the process (which should only be subject to medical considerations), the establishment of a mechanism to deal with conscience objectors, sanctions for the doctors who prevent access to medical attention, and the integral medical and psychological attention to the victim, among others.
Salta: The Worst Case
Within the results of the new report, the ADC found that Salta has been the worst province in terms of guaranteeing access to non-punishable abortions, as its protocol “is the one that strays the most from the standards set out by the Court in the F.,A.L. ruling.”
A detailed analysis of the Salta case shows a connivance by all the state powers to block access to the right to an abortion in cases of rape and risk to the woman’s health. An attempt by civil society organisations to revoke the protocol put in place by the provincial government was rejected by Salta’s Supreme Court, invoking international treaties that “protect the right to life from conception” — an argument that was explicitly rejected by the national Supreme Court in the F.,A.L. ruling.
The protocol issued by the Salta government — whose first reaction upon learning of the Supreme Court ruling was to refuse to comply with it — requires the intervention of the Public Ministry to prepare a sworn declaration, the “presence” of the parents in cases involving minors (although it is not clear as to whether their authorisation is also required), allows doctors to refuse to carry out the procedure (for reasons other than moral objections), requires the authorisation of a legal representative in cases involving intellectually disabled women, and establishes a time limit of 12 weeks into the pregnancy. The protocol also fails to regulate cases where the health of the woman is at risk, as it only refers to cases of rapes. ADC found that all of these requirements could become obstacles to access legal abortions, and they contradict the Supreme Court ruling.
These obstacles to the exercise to the right to an abortion are illustrated in the ADC report by the case of a 14-year old girl who was raped by her step-father, and whose attempts to terminate the pregnancy which resulted from that rape were blocked by the doctors in the public hospital where she was being treated and by members of the Public Ministry and of the provincial judiciary. All of them ignored medical reports which stated it was dangerous to continue with the pregnancy, and with psychological reports which indicated the girl was “letting herself die”.
Misiones: Setting The Example
In contrast, the ADC report found that “the protocol of Misiones not only complies, to a great extent, with the Supreme Court requirements, but it also moves forward in recognising the right of disabled women to give their free and informed consent to access [abortion] and it establishes a system of support and safeguards for those disabled women who may require it.”
The provincial Health Ministry informed ADC that it has provided training on sexual and reproductive rights to health staff throughout the province, and that it has established an “integral consulting service, which includes pre and post-abortion counselling” in hospitals in the capital, Posadas. Five non-punishable abortions were carried out in Misiones in 2014.
The Buenos Aires Case
The analysis of the situation in the City of Buenos Aires shows a constant struggle between different state actors and members of civil society to either ensure or prevent access to legal abortion.
The protocol issued by the City government includes a number of requirements not foreseen by the Supreme Court ruling, which ADC finds could act as obstacles to accessing nonpunishable abortions. A law passed by the local legislature in September 2012, which sought to comply with the F.,A.L. ruling, was vetoed by Mayor Mauricio Macri.
Both the government protocol and the decree vetoing the law were found to be unconstitutional by the judiciary, although those decisions are being appealed by the government and the Public Ministry. In the mean time, the restrictive requisites set out in the protocol remain suspended.
The political struggle for the right to legal abortion reached the media in October 2012, when Macri “announced” and gave details about the first non-punishable abortion in the city, which was to be carried out a few days later. His announcement alerted Catholic group Pro-Vida, which filed an injunction seeking to stop the procedure. The injunction was irregularly accepted by a judge, but the decision was eventually overturned by the city’s Supreme Court, and the procedure was carried out. The woman involved was a 32-year old victim of trafficking networks who had been recently rescued.
A Pending Debate
Last week, new Health Minister Daniel Gollán emphasised the need to comply with the existing law in cases of non-punishable abortions: “There is a law, we have to abide by it. We’re working a lot and we have got many hospitals in the country complying with this law.”
Gollán also expressed an interest in promoting “a mature debate about abortion with all sectors of society.” However, he was quickly undermined by Cabinet Chief Aníbal Fernández, who clarified that a debate on the legalisation of abortion in all cases is not on the government’s agenda.
The issue of legalisation has been pushed by civil society organisations and by legislators for years. There is currently a bill in Congress seeking to decriminalise this practice up to the 12th week of gestation —and without time limits for cases of rape, risk to the mother, or fetal malformations— but the unwillingness of the federal government to move forward with this reform has stalled the process.