Argentina: Supreme Court opposes obstructions to legal abortion

Many thanks to Sonia Ariza, a researcher at the Gender and Law Program at the University of Palermo, Argentina and Johanna Hardwick, a visiting researcher at the University of Palermo who is also completing a Master’s degree in International Human Rights Law at the University of Buenos Aires.  They have kindly summarized this recent case for Reprohealthlaw subscribers in English.  A Spanish version of this case summary is available online here. 

“THE PROFAMILIA CASE”
“Asociación para la defensa y promoción de la familia –PROFAMILIA- s/ medidas precautorias” Expte.82.259/2012,  September 17, 2013.

The Argentine Supreme Court orders investigation of an NGO, a lawyer and a judge who obstructed access to a legal abortion.

On September 17^th, 2013, the Supreme Court of Argentina issued a new decision in the case of a rape victim who had faced obstructions in access to legal abortion. The decision confirmed the obligation upon all levels of the State to guarantee access to non-punishable abortions and ordered an investigation into all the people involved in obstructing a non-punishable abortion in the City of Buenos Aires.

Mrs. XX had escaped from a sex trafficking network and upon learning about her pregnancy she sought an abortion at the Hospital Ramos Mejía (a public hospital in the City of Buenos Aires). That same week, the Mayor of the City of Buenos Aires had vetoed a law regulating the provision of legal abortions in the city’s health system.  In order to fight the negative perception of his veto, the Mayor publicly announced that the legal abortion was going to be performed at the Hospital Ramos Mejía on October 9^th, 2012.  Upon learning the news, the conservative NGO PROFAMILIA and a “lawyer for the child” requested a precautionary court order to stop the abortion from being provided.

The precautionary measure requested by PROFAMILIA was denied by the first judge of the City of Buenos Aires who originally received the petition.  However, PROFAMILIA insisted, filing a new petition directly with Judge Myriam Rustán de Estrada, who granted the order suspending the provision of the abortion. The precautionary measure granted by Rustán de Estrada lacked grounds and had also been issued in violation of rules governing the random assignment of cases to judges in Rustán de Estrada’s jurisdiction.  One day after the precautionary measure was issued, the Supreme Court of Argentina intervened, nullifying the judge’s order and mandating the woman’s access to a legal (“non-criminal”) abortion.

Almost a year later, on September 17^th, 2013, the Supreme Court issued its final decision in the case. The Court began by making clear the need to decide the case even though the abortion had already been performed.  The decision was needed given the existence of obstructions that could “prejudice judicial interventions.” The justices also considered that “it was necessary to adopt measures to dismantle all possible consequences that could be derived from prejudiced judicial acts.” The order of the Court specified: (a) the duty to judicially investigate the performance of actions by the NGO, (b) the duty to evaluate the conduct of the lawyer representing the “unborn child,” and (c) the duty to notify the Judicial Council so that the body could investigate Judge Rustán de Estrada’s intervention in the case.

The decision in the PROFAMILIA case clearly demonstrates the Supreme Court’s commitment to guaranteeing access to legal abortions.  However, the decision also illustrates the failure of the model of indications adopted by article 86 of the Argentine Criminal Code to regulate legal abortions.  Even if sanctions resulting from the Court-ordered investigations were to materialize, sanctions alone do not remove the possibility of another obstruction of this type being brought before the courts, given that conservative strategies aim to take advantage of the discretionality implicit in the indications model.

Full texts in Spanish

Spanish version of this case summary is online here.

Court Opinions:
“Asociación para la defensa y promoción de la familia –PROFAMILIA- s/ medidas precautorias” Expte.82.259/2012.
—Suspension of the interim measure in October 2012 abstract here – for decision, click “Fallo Completo”
—Judgment on the facts of the interim measure. September 13, 2013 online here.