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The Supreme Court of Argentina held that girls and women who have experienced an incident of sexual violence have the right to abortion services within the healthcare system by simply presenting an affidavit stating their wish to have voluntary termination of pregnancy performed.
The Court likewise ordered all national and provincial healthcare providers to implement and place in operation protocols for effective provision of non-punishable abortions, to guarantee comprehensive healthcare services (physical, psychological, sexual, and reproductive) to all survivors of sexual violence, and to launch public information campaigns on the rights of women and girls who experience sexual violence.
On December 3, 2009, A.F., on behalf of her fifteen-year-old daughter A.G., reported to the Prosecutor of the Province of Chubut that her daughter had been raped by A.F.’s husband.
On January 14, 2010, A.F. went to the provincial court system of Chubut to request authorization to have a voluntary termination of pregnancy performed for her daughter, who was about eleven weeks pregnant, under Article 86, paragraph 2 of the Penal Code, which provides that “an abortion performed by a certified doctor with the consent of the pregnant woman is not punishable (…) 2) If the pregnancy is the result of a rape or indecent assault against an idiotic or demented woman. In this case, her legal guardian’s consent shall be required for the abortion.”
The judge of first instance and the prosecutor’s office denied A.G.’s request for reasons of competency. Her mother therefore filed a self-executing measure (medida autosatisfactiva in Spanish) in family court seeking termination of her daughter’s pregnancy. The petition was denied by the court of first instance as well as on appeal, despite the fact that the record showed that the continuation of A.G.’s pregnancy would endanger her life.
On March 8, 2010, the Superior Court of the Province of Chubut revoked the decision of the court of first instance. In its ruling, the Court held that “a) the case fell within the definition of “non-punishable abortion” provided for in paragraph 2, first part, of Article 86 of the Penal Code; b) that this hypothesis of interruption of the pregnancy was compatible with the constitutional and conventional plexus; and c) that despite the fact that judicial authorization is unnecessary for carrying out this procedure, such authorization was granted in order to put an end to the controversy set out in this case.” Finally, on March 11, 2010, the minor exercised her right to a legal, safe abortion.
The Superior Court of the Province of Chubut’s ruling was appealed by the Subrogating General Counselor of the Province of Chubut (an official of the Public Prosecutor), on behalf of the fetus, arguing that the case of the minor child A.G. did not fall within the categories allowed under criminal law, because the minor was not an idiotic or demented rape victim. He further argued that Argentina protects life from conception.
The F.A.L. matter found its way to the Supreme Court of Argentina. The Defender General of the Nation appeared in representation of A.G., requesting confirmation of the ruling on appeal. On March 13, 2012, the Supreme Court upheld the Provincial Court’s decision.
The Supreme Court of Argentina is the highest court in the Argentine judicial branch. It hears all extraordinary appeals brought before it, as well as some matters over which it has sole competency. Along with the Council of the Judiciary, it administers the Judicial Branch.
The ruling in the F.A.L. matter is a landmark decision for the sexual and reproductive rights of women and girls in Argentina. It represents a step forward in the protection of the right to legal, safe, and timely abortion services by eliminating legal hurdles (the need to file a police report or obtain a court order) as well as regulatory hurdles (narrow interpretation of abuse) to obtaining a safe voluntary termination of pregnancy.
The decision also establishes a set of obligations for the State in order to ensure access to safe and timely services for women who have been sexually assaulted and wish to have an abortion. The systematic interpretation of international and local legislation should be noted as well, because it can be valuable for purposes of constructing a rights-based legal discourse that is inclusive of women.
Because of its positive contribution to gender equality this decision was nominated to the Gender Justice Uncovered Awards 2012. You can visit the nomination here .
The Supreme Court of Argentina began its analysis by emphasizing the importance of ruling on this kind of case even when the matter in question—the termination of A.G.’s pregnancy—was no longer at issue. For the judges, this decision is necessary because the Court is required to guarantee human rights as well as to set precedents for similar cases in the future. The Court likewise noted that the harmonization and interpretation of Article 86 should be studied in light of the pronouncements of several international bodies, which since 1994 have been part of Argentine constitutional law and are therefore binding on the State. Therefore, failure to comply with international obligations carries international responsibility.
Constitutional interpretation of restrictions on legal abortion
The Court set out to analyze whether the intent of the constitution was to limit the scope of legal abortions in cases of sexual assault to circumstances of women with mental, disabilities. To this end, it notes that Article 75, paragraph 23 of the National Constitution does not lend itself to a narrow interpretation as the plaintiff claims. On the contrary, constitutional regulations grant sufficient mandate to legislators for them to protect women’s rights during and after pregnancy within a framework of social well-being, not a punitive framework.
The Court went on to note that the right to life was debated at the 1994 Constitutional Convention, and the constitutional will was never established to limit legal abortion in cases of sexual assault to mentally disabled rape victims.
Absolute protection of the right to life
The Court set out to analyze the plaintiff’s arguments on absolute protection of the right to life and the recognition of the legal personality of the unborn based on a systematic review of human rights conventions and the observations of United Nations monitoring committees. It concluded that international human rights law does not provide an absolute and strict construction of the right to life to the detriment of women’s rights.
More specifically, the Court noted that the provisions of Article 1 of the American Declaration of the Rights and Duties of Man, as well as Articles 3 and 4 of the American Convention on Human Rights, were “expressly limited in their formulation so that the invalidity of an abortion like the one in this case could not be derived from them.” Furthermore, it noted that in discussions for the drafting of these articles of the Convention, as well as in the Baby Boy case heard by the Inter-American Commission on Human Rights, no absolute protection of the right to life was established.
The Court also referred to the content of Articles 3 and 6 of the Universal Declaration of Human Rights, which enshrine the right to life and the right to recognition as a person before the law, respectively. These articles should be interpreted based on Article 1 of the Declaration, which provides that “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” In this sense, the Court referred to Observations of the United Nations Human Rights Committee in which States are urged to allow abortion in cases where the pregnancy is the result of rape. Specifically, it highlighted the Committee’s Concluding Observations in which it expressed its concern over the narrow interpretation of Article 86 of the Argentine Penal Code.
Finally, the Court noted that a broad construction of the right to life may be drawn from the background, preamble, and provisions of the Convention on the Rights of the Child.
Principles of equality and protection from discrimination
Based on the principles of equality and the prohibition of all forms of discrimination, the Court concluded that limiting the voluntary termination of pregnancy to cases in which the pregnancy is the result of rape of a mentally incompetent person would mean establishing an unreasonable distinction in treatment vis-à-vis other victims, because it would not have basis in any valid criteria for making such a distinction.
The Court held that the principle of human dignity does not allow the State to require heroic measures, such as making a woman who has been raped take the pregnancy to term. Such a requirement would be clearly disproportionate. It likewise indicated that criminal sanction should be the last resort in a State’s legal system, and in this sense, the scope of criminal sanction should be limited and all rape victims should be allowed access to abortion as a right.
The Supreme Court of Argentina found that non-punishable abortions under Article 86 include all cases resulting from rape, regardless of the survivor’s mental competency. It likewise noted that any requirement of court authorization in order to have an abortion performed runs counter to the nature of applicable regulations and the principles of emergency health care, and that therefore, the right to an abortion may in no way be dependent upon a court order requested by a healthcare provider.
The Court also urged national and provincial authorities to implement and place in operation protocols for effective provision of non-punishable abortions in order to remove barriers to access.