Skip to main content

In March, Argentina's Supreme Court issued a decision clarifying a woman’s right to obtain an abortion in all cases of rape. While this is an enormous achievement, ensuring that rape survivors are able to access abortion in practice represents an even greater challenge.

Written by Alia Al-Khatib for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

On March 13, 2012, the Supreme Court in Argentina issued a decision in the case F., A. L. s/Medida autosatisfactiva, which clarified a woman’s right to obtain an abortion in all cases of rape.  This is particularly significant in a country where, according to an official estimate from the Health Ministry in Argentina, between 486,000 and 522,000 illegal abortions are performed annually. While this is an enormous achievement towards women’s access to safe and legal abortion in Argentina, ensuring that rape survivors are able to access abortion in practice represents an even greater challenge.

The decision emerged from a March 2010 case in the province of Chubut involving a 15-year-old girl, A. G., who was raped by her stepfather and became pregnant. With the support of her mother, A. G. sought an abortion by first requesting approval from the Criminal Court judge in the province. Due to an unclear understanding of the Penal Code in the lower courts of the province, she had to obtain authorization ultimately from the Superior Justice Court in Chubut, a process that lasted two months. A. G. was able to obtain an abortion, though only after a long period of delay and a great deal of unnecessary stress. Even when the pregnancy had already been terminated, the case proceeded to the Federal Supreme Court in order to seek clarification concerning the permissibility of abortion in certain circumstances.

According to Article 86 of the Argentine Penal Code, abortion is not punishable on two grounds: first, if the health or life of the mother is at risk and abortion is the only way to relieve this risk; second, if the pregnancy results from a rape or if the woman is mentally incapable of providing consent.  In this case, the Supreme Court considered the second clause. The Court determined that, in all cases of rape and not only in situations in which the woman is mentally incapable, a woman has not provided consent. For this reason, the Court provided an interpretation of the Penal Code that decriminalizes abortion in all cases of rape and that allows a rape survivor to obtain an abortion without the need for judicial proceedings. Furthermore, the Court made it clear that it is illegal to obstruct a rape survivor from exercising her right to abortion.

The Supreme Court’s decision is consistent with developments in international human rights law and standards. In one such case from July 2006, L. M. R. v. Argentina, L. M. R., a young woman with a mental age of between eight and ten years, became pregnant after being raped by her uncle. Though Article 86 of the Penal Code clearly permits abortion in this scenario, the public hospital initiated judicial proceedings to determine whether or not L. M. R. could terminate the pregnancy because staff members at the hospital disagreed as to whether she had grounds to do so. A juvenile court judge denied the abortion.  

Following a series of appeals, the Supreme Court of Buenos Aires determined that L. M. R. could terminate the pregnancy based on the second clause of Article 86 of the Penal Code. Even after the Supreme Court of Buenos Aires issued this decision, the local hospital refused to perform the abortion and defended their position by claiming that the pregnancy was too advanced, though at the time L. M. R. was just under 20 weeks. With the help of local advocates, she ultimately obtained an illegal abortion in a private clinic. In March 2011, the Human Rights Committee of the International Covenant on Civil and Political Rights determined that denying L. M. R. an abortion violated her right to equality and non-discrimination embodied in the Covenant and that forcing her to continue with the pregnancy constituted cruel and unusual punishment.

The cases of L. M. R. and F., A. L. illustrate that, although the law provides for the right to abort in certain circumstances, women face many obstacles from anti-abortion legislators and judges, and even health providers who are meant to provide these services. Shortly after the Supreme Court issued its decision in the case of F., A. L., the governor of Salta, a province in northern Argentina, announced that he would not comply with the Supreme Court’s decision. Similarly, the Health Minister in Santa Rosa, the capital of La Pampa province, stated that public hospitals would not abide by the decision. Though not surprising, the refusal of these provincial leaders to comply with the federal case is futile and only serves to delay the implementation of protocol for non-punishable abortion in rape cases. Furthermore, the Archbishop of Santa Fe denounced the decision in an interview with a national newspaper, La Nación, and stated that there never exists a justification for abortion, a statement that carries a great deal of weight in a country, like others in Latin America, that remains heavily influenced by the Catholic Church.

Such reactions to this particular case remind pro-choice advocates that this decision is only the first step in ensuring that rape survivors can access abortion and that there is even more work ahead for women to gain access to safe, voluntary, and legal abortion in Argentina. Moving forward, local advocates plan to urge provinces to implement protocols in hospitals so that the law is clear to health providers and to women seeking abortions.

EMAIL TO A FRIEND X
Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags

?

More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site