In Argentina, the case of a 15-year old girl who was raped by her stepfather drew nationwide attention after she and her doctor were held criminally responsible for terminating the resulting pregnancy. The central issue in the case was the interpretation of Article 86, paragraph 2 of Argentina’s penal code, which outlawed abortion except where the pregnancy resulted from “rape or indecent assault perpetrated against a feeble-minded female.” Argentinian courts have disagreed over whether this part of the statute applies only to mentally handicapped women who lack the capacity to consent, or to cases of rape in general. In its opinion, the National Supreme Court clarified the confusion and confirmed the broader application of the statute to all cases of rape.
After the girl’s petition to have an abortion was initially denied by the lower court in her home province of Chubut, the provincial Supreme Court there ultimately granted her the necessary permission. However, the Public Defender of Chubut appealed the decision to the National Supreme Court on behalf of the girl’s fetus after the abortion had been performed. Citing Argentinian and international jurisprudence, the Public Defender argued that the girl’s abortion was illegal because she is not mentally handicapped and because the fetus’ right to life had been violated.
The Supreme Court of the Nation summarily rejected the Public Defender’s arguments in its strongly worded opinion, stating that Article 86, paragraph 2 of the penal code should be interpreted to allow legal abortions in all cases of rape, not only situations where the survivor is mentally handicapped. The Court went on to explain that any other interpretation would substantially and unnecessarily increase the number of illegal abortions taking place in Argentina, and would have an unreasonable negative effect on rape survivors who are not mentally handicapped. “Forcing every other victim of a sexual crime to carry their pregnancy to term is an attack against their most fundamental rights,” concluded the Court, after also basing its arguments on Argentinian and international law.
Referencing Article 75, paragraph 23 of the Constitution, which addresses congressional duties with reference to human rights, especially the rights of children, women, the elderly, and the handicapped, the Court stated that protecting the rights of children should not be interpreted in a way that would hold rape survivors criminally responsible for terminating ensuing pregnancies. In this case, where the survivor was herself a juvenile, the Argentinian state’s duty to protect her rights superseded its duty to the fetus. The Court went on to state that Argentina’s adherence to both the Organization of American States and United Nations human rights treaties was not compromised by the Court’s move to decriminalize abortion in cases of rape. In fact, the Court considered the equal protection and non-discrimination clauses of the Argentinian Constitution, the American Convention on Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, to be the guiding principles of Argentinian jurisprudence. Provisions of the Inter-American Convention for the Prevention, Punishment, and Eradication of Violence Against Women, the Convention on the Elimination of all Forms of Discrimination Against Women, and the Convention on the Rights of the Child that address fundamental freedoms and equal protection under the law also apply.
Under the clarified interpretation of the Penal Code, doctors who perform abortions after receiving sworn statements from women that the pregnancy they are seeking to terminate resulted from rape also cannot be held criminally responsible. As such, the Court noted its desire to streamline access to medical services for rape survivors to remedy cumbersome processes that could be considered structural and institutional inequality and violence under the Inter-American Convention for the Prevention, Punishment, and Eradication of Violence Against Women. In doing this, the Court also hopes to dissuade rape survivors from seeking unsafe abortions, which could potentially result in severe health complications and possibly death. The World Health Organization estimated that twelve percent of maternal deaths in Latin America and the Caribbean in 2008 were due to unsafe abortions. Likewise, about one million women per year are hospitalized in the region because of complications from unsafe abortions.
While the Catholic Church and other pro-life organizations in Argentina have denounced the Supreme Court’s ruling, women’s rights activists have hailed it as a step in the right direction for reproductive freedom in Argentina. As evidence of this, several days after the Court issued its decision, the National Campaign for the Right to Legal Abortion rallied representatives from Argentina’s main political parties and proposed legislation which would decriminalize abortion during the first trimester of pregnancy, showing the issue will not end with the Supreme Court’s decision.