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Via University of Toronto, Canada
Reproductive Health & Law
From Paola Bergallo - Argentina:
ARGENTINA
- TWO JUDICIAL DECISIONS REGARDING
ABORTION IN THE CASE OF RAPE
Summarized by Paola Bergallo and Agustina Ramón Michel
Argentina - Universidad de San Andrés and Centro de Estudios de Estado y
Sociedad (CEDES)
The
Supreme Court of Chubut argued that
Section 86.2 of the NCC decriminalises abortion
in case of rape of any woman.
In March 2010, the Supreme Court of Chubut
and a panel of the Court of Appeals of the same
province decided two cases regarding abortion in
case of rape. In their decisions in the cases of
A.G. and of M., the courts found that Section
86.2 of the National Criminal Code (NCC)
establishes that abortion is never punishable in
case of rape. The decisions are of particular
importance because they accept the reading of
Section 86.2 of the NCC establishing that the
decriminalization of abortion in case of rape
extends to all raped victims and not exclusively
to mentally retarded women. The two new
precedents overturn the prevalent restrictive
understanding of Section 86.2 of the NCC accepted
by the courts and the health system in several
prior cases where non-mentally-retarded rape
victims had been denied their requests for abortions.
The A.G. case:
In December 2009, AG, a 15-year-old girl
accompanied by her mother, reported to the local
police that her mother's partner had raped her. A
few weeks later, AG learned she was pregnant.
Since then, and for more than two months, AG and
her mother faced several obstacles to obtain an
abortion that was finally performed ten days ago
after the Supreme Court of Chubut authorized it.
In late December 2009, immediately after
realizing about the pregnancy, AG and her mother
requested a legal abortion before the Chubutean
public health system. At the same time, AG's
mother filed a judicial request to preserve the
evidence of the rape upon performance of the
abortion. The criminal judge that first received
the request considered that his court did not
have jurisdiction over the petition. A month
later, a judge in charge of a family court of
first instance intervened. After submitting AG to
various studies and interviews the new judge
denied the authorization for the abortion. Her
decision was taken in spite of several
psychological reports that had declared that AG's
health
was at a severe risk.
A week after the first court decision, a
panel of the Court of Appeals confirmed the
denial of the authorization. Finally, on March
8th, the Supreme Court of the Province reversed
its predecessors and issued an unprecedented
decision authorizing the abortion in compliance with
Section
86.2 of the NCC.
The decision:
The judgments by the first two courts
rejected the authorization of the abortion on the
grounds that (i) abortion in case of rape was not
permitted when the rape victim was not mentally
retarded, (ii) it could cause more damage for the
health of the girl than the risk offered by the
continuation of pregnancy, and (iii) that the
right to life of the fetus prevailed over the right
of
the teenager.
Unlike its predecessors, in its decision in
AG the Supreme Court of Chubut argued that
Section 86.2 of the NCC decriminalises abortion
in case of rape of any woman. As a result, the
decision confirmed that the only interpretation
of Section 86.2 compatible with the Constitution
and human rights treaties subscribed by Argentina
is that Section 86.2 abortions should proceed
whenever a rape victim requests them. This should
be the case independently from whether the raped
victim is or is not mentally retarded.
The three judges of the Chubutean Supreme
Court grounded their separate votes on several
sources of law. References were made to the
provisions of the Constitution and international
human right treaties. From a constitutional
standpoint, the Court emphasized the
constitutional protection of the rights to
physical, mental and personal dignity and,
autonomy of AG. The judges also considered that
the permissions to terminate the pregnancy
established in the NCC are the result of the
recognition of the prevalence of the right to
health and the right to dignity of the woman vis
a vis the interest in the protection of fetal
life reflected by the criminalization of abortion.
In addition, the Court abundantly quoted
international human rights sources. The judges
referred to CEDAW and the CRC. In particular, the
Court clarified the discussion regarding Section
4.1 of the American Convention on Human Rights
and it followed the position of the
Inter-American Commission on Human Rights'
opinion in case 2141 (Baby Boy). Moreover, the
Court draw attention to a series of
recommendations issued by human rights treaty
monitoring bodies, such as the CEDAW, General
Recommendation 19, the Recommendations made to
Argentina by the Human Rights Committee
(CCPR/CO/70/ARG) on the relationship between
restrictive abortion laws, clandestine abortions
and threats to women's lives; and the Report of
the Special Rapporteur on Violence against Women
(E/CN.4/1999/64/ADD.4).
The Court warned that Section 86 abortions
did not require judicial authorizations and that
judicial intervention generated the risk of
incurring in international responsibility due to
the country's lack of compliance of its human
rights commitments. After emphasizing the
multiple victimization suffered by AG, the Court
found that denying the request for an abortion to
a rape victim would entail the imposition of a
heroic conduct incompatible with Argentine law.
Finally, the Court ordered that the
abortion be performed and suggested that in order
to avoid future uncertainties the province of
Chubut should regulate and guarantee access to
non-punishable abortions through the approval of
a local protocol or adherence to the National Protocol
approved
in 2007.
New key voices heard in the case:
The decision in the case of AG stands as an
important precedent because it clarified the
conditions for accessing Section 86 legal
abortions. Yet the case is also valuable because
multiple voices helped to articulate the defence
of AG throughout its development. With the
exception of women's organizations organized
under the national campaign for the legalization
of abortion (Campaña por el Derecho al Aborto
Legal, Gratuito y Seguro), such voices had been
absent from prior discussions of Section 86 abortions.
Unlike in earlier judicial confrontations,
this time the National Reproductive Health
Program, the National Anti-Discrimination Agency
and the Human Rights Secretary made the Court
hear their opinions supporting AG's claim through
three amicii briefs. Briefs and statements were
also filed with the Court or distributed widely
by (a) prestigious feminist organizations such as
CLADEM and Catholics for a Free Choice, (b)
national human rights organizations such as
Asociación por los Derechos Civiles (a sort of
Argentine ACLU) and Centro de Estudios Legales y
Sociales (CELS), and (c) international human
rights players such as Human Rights Watch and Amnesty
International.
Moreover, Justice Carmen Argibay from the
federal Supreme Court and prestigious federal
judges, as well as Mr. Das Neves, governor of the
Province of Chubut, publicly supported the decision.
The M. case:
While the AG case was being litigated,
another case with similar facts reached the
Chubutean health system. The 15-year-old M. was
another pregnant rape victim. In March 12th, four
days after the Supreme Court of Chubut had
approved the abortion for AG, a judge of first
instance denied the request filed by M and her
mother.
Yet,
a week later, the Court of Appeals
that a month before had not authorized the
abortion demanded by AG changed its precedent and
following the Supreme Court decision in AG case
authorized the abortion. On March 20th, M.
finally obtained the abortion she had also awaited for
almost
three months.
* * *
The AG and M stories are sad tales about
the suffering of two adolescents and their
mothers who underwent a tortuous judicial
procedure to access a legal abortion. The two
older men who raped them were the first to
infringe their rights. The health and the
judicial systems helped to reinforce their
victimization denying and delaying the provision
of the abortions they should have received the
moment they first requested them. Yet the court
precedents their cases generated give us reasons
for a moderate celebration because the suffering
of AG and M may pave the way for the changes that
would lead to avoid future denials of Section 86 legal
abortions.
More
information on the cases can be found
in Spanish at: www.despenalizacion.org.ar
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