[Laredviene] RV: Argentina - Supreme Court Decriminalises Abortion in Case of Rape

[Asistencia Repem]

FYI

 

 

Paola Soler Amaya

Asistente de Coordinación Regional REPEM

Telefax: (571) 4801620

Bogotá-Colombia

 

De: WUNRN_ListServe en LISTS.WUNRN.COM [mailto:WUNRN_ListServe en LISTS.WUNRN.COM]
En nombre de WUNRN ListServe
Enviado el: miércoles, 21 de abril de 2010 08:32 a.m.
Para: WUNRN_ListServe en LISTS.WUNRN.COM
Asunto: Argentina - Supreme Court Decriminalises Abortion in Case of Rape

 

 

 

WUNRN

http://www.wunrn.com

 

Via University of Toronto, Canada

Reproductive Health & Law

 

From Paola Bergallo - Argentina:

pbergallo en udesa.edu.ar 

 

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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