XXX et al re: PROSECUTION FOR PROFESSIONAL ABORTION SERVICES - Docket No. 28580/2015
Argentina, National Criminal Court No. 16

XXX et al re: PROSECUTION FOR PROFESSIONAL ABORTION SERVICES - Docket No. 28580/2015

DATE 28-06-2016DOWNLOAD LEGAL DECISION

Judges:

Laura Graciela Bruniard

Laura Graciela Bruniard

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Topics:

AbortionSexist Violence

WHY IT MATTERS:

National Criminal Courts in Argentina hear cases of crimes requiring public prosecution within the judicial districts assigned to them.

This decision sets a major precedent for women’s human rights by recognizing harm to women’s mental health resulting from gender-based violence as a basis for legal abortion. The decision was based on an evolutive interpretation of criminal law, specifically the law decriminalizing abortion under certain circumstances, and on the link between the protection of women’s right to live free of violence and their right to comprehensive health, including mental health. The ruling has implications beyond Argentina’s borders, as it establishes that the performance of legal abortions may not be conditioned on legal proceedings such as a mandatory police report, since these requirements constitute an obstacle to effective and safe access to abortion services. Reporting a rape is the sole and exclusive prerogative of the victim, and it may not be used as a justification for denying access to safe and dignified abortion services. 

This is an important precedent for other women who find themselves in similar circumstances and wish to abort, and for the healthcare professionals who assist them in accordance with applicable law, which in Argentina allows abortion under three circumstances: 1) danger to the woman’s life, 2) danger to her health, and 3) pregnancy as a result of rape. 


National Criminal Court No. 16 found that a woman who terminated her pregnancy after becoming pregnant as the result of sexual assault her partner committed against her, and the two doctors who prescribed her abortion medications, were not guilty of any crime because the woman’s health was at risk. The Court noted that termination of pregnancy is not punishable under Argentine criminal law when the procedure is performed to prevent a risk to the woman’s health, including risk to mental health as a result of being a victim of gender violence.

Argentine criminal law establishes three circumstances in which termination of pregnancy is legal: 1) danger to the woman’s life, 2) danger to her health, and 3) pregnancy as a result of rape.

In 2015, in Buenos Aires, a woman victim of gender violence became pregnant as a result of sexual assault committed by her partner. She went with her partner to a clinic to get information about abortion services. At the clinic, two doctors interviewed the woman, who had made an unsafe attempt to abort in the past. They assessed her personal, social, and psychological situation and informed her and her partner that the abortion was legal on the basis of risk to the patient’s mental health if she were to carry the pregnancy to term. They then provided her with information on the procedure and post-procedure care as well as the medication she should take to terminate the pregnancy. 

A few days later, the woman returned to the clinic and reported that she had not been able to take the medication because her partner had taken it from her. The doctors gave her a new prescription, and she was able to terminate the pregnancy safely and legally. When her former partner found out, he reported her for “deliberately terminating her pregnancy” and the two healthcare professionals for “providing cooperation and supplying medications” for the abortion. The case was heard by National Criminal Court No. 16. 


National Criminal Court No. 16 examined whether the actions performed by the woman and the two doctors were legal under Article 86, Section 2 of the Argentine Penal Code. The Court focused on four issues: 1) The fact that gender violence causes harm to women’s mental health, which should be taken into account in determining risk to health if the pregnancy is carried to term; 2) the woman’s previous attempt to have an abortion in unsafe and high-risk conditions as an example of one of the major causes of maternal death; 3) an evolutive interpretation of the circumstances under which abortion was decriminalized in Argentina and their relationship with women’s right to health, including mental health, and to live free of violence; and 4) the fact that legal abortion does not require prior court involvement.

Issue 1: The fact that gender violence causes harm to women’s mental health, which should be taken into account in determining risk to health if the pregnancy is carried to term

The Court started by reviewing the actions of the woman and her two doctors in determining the risk to her health. It recognized that she was a victim of gender-based violence at the hands of her former partner, the pregnancy was a result of sexual violence, the violence she suffered created a risk to her mental health, and continuing with the pregnancy would exacerbate her already serious anxiety. Therefore, the doctors based their decision to furnish the patient with the information and medication necessary to perform a safe, legal termination of pregnancy on their assessment of her situation at the time, which the Court did not find constituted a violation of abortion law. Turning to the question of the right to health, and citing domestic jurisprudence, the Court held that the use of the term “health” refers to “protecting the right to health in a comprehensive manner,” meaning that it is not proper to disregard the possible risks to a woman’s mental health if she carries the pregnancy to term and limit the criteria for legal abortion to only those cases where the pregnant woman’s physical health is at risk. 

Issue 2: The woman’s previous attempt to have an abortion in unsafe and high-risk conditions as an example of one of the major causes of maternal death

The Court furthermore considered the fact that the woman had previously attempted to abort in an unsafe manner as a risk factor to both her physical and mental health. It found that the doctors who provided her with abortion information and medication did so in a manner that was safe for the patient’s physical health, without disregarding the risk to her mental health associated with the situation she found herself in. The requirement of risk to the woman’s health under the health provision of the abortion law was therefore met. 

Issue 3: Evolutive interpretation of the circumstances under which abortion was decriminalized in Argentina 

The Court held that the doctors who provided the woman with information and medications did so with the legitimate legal aim of performing the abortion the woman sought and consented to, and they achieved this aim by appropriate or proper means. Therefore, notwithstanding any possible personal, moral, religious, social, or cultural judgment that may be made of the case, particularly considering how controversial issues related to abortion can be, the evidence at trial showed that the termination of pregnancy in this case was not punishable under criminal law. According to the Court’s evolutive interpretation, the woman’s situation fit within the requirements of Article 86, Section 1, of the Penal Code, because a) she was a victim of sexual and gender violence at the hands of her former partner; b) her pregnancy was affecting her mental health by causing anxiety and stress; c) she made her decision to abort freely; d) she had attempted unsuccessfully to abort previously, endangering her life; and e) there was no showing that her intent to have an abortion with the assistance of the two doctors was motivated by reasons other than the above circumstances. 

Issue 4: Legal abortion does not require prior court involvement

The Court cited domestic jurisprudence, particularly the guidelines established by the Supreme Court of Argentina in its ruling on the matter of F.A.L. s/ self-executing measure (F. 259. XLVI. 001115 del 13-3-2012), noting that an evolutive interpretation should be made of the circumstances under which abortion is decriminalized, and emphasizing that “the performance of a legal abortion... is not contingent upon prior judicial proceedings.” The Court therefore indicated that the legal limit to cases in which the procedure may be performed lies outside the literal text of Article 86 of the Penal Code. Indeed, doctors should not at any time require judicial authorization to perform an abortion under the rape provision, but should require only a sworn statement by the victim that the pregnancy is the result of rape. The Court was clear in establishing that while in this case there was no formal report of rape, this did not mean that the woman had not been the victim of sexual violence at the hands of her former partner as she claimed in her interview with the doctors. Under Argentine law, the crime of rape is charged by the victim (Article 72 of the Criminal Code), and reporting is not mandatory for victims. However, a pregnant woman cannot be required to report something she does not wish to report in order to justify getting an abortion to terminate a pregnancy that is the result of the acts committed against her by her assailant, when there is well-founded evidence that would lead a reasonable person to believe that she was a victim of sexual violence resulting in pregnancy. 

The Court based these conclusions largely on the abovementioned Supreme Court case, noting that judges have “the obligation to guarantee rights, and in discharging their duties, they must not erect obstacles to the exercise of these rights, which are the exclusive province of the patient and her doctor.” The Court went on to say that it was important to consider the position of the World Health Organization and the different decisions by the United Nations Human Rights Committee and Committee on the Rights of the Child related to the issue, which are also included in the cited Supreme Court case, and which clearly state the importance of guaranteeing safe access to legal abortions and “the elimination of those institutional or legal barriers or obstacles that have prevented women from exercising a recognized right.” The Court urged national, provincial, and local authorities to adopt rules and policies establishing healthcare protocols for legal abortion services in order to remove all administrative or actual barriers to access to these services. 

In the instant case, the Court reiterated that while no official report was made of the rape, the evidence at trial was sufficient to show that rape did occur, and it was up to the victim to decide whether to report it. The doctors were justified in proceeding as they did, allowing the woman to carry out her free and voluntary decision to abort, and protecting her right to comprehensive health, including mental health. 


National Criminal Court No. 16. found the woman and her two doctors not guilty of providing information and cooperating in a termination of pregnancy. It made a point of mentioning that the prosecution of the case in no way affected the good name or honor of the three defendants.

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