This week, in a groundbreaking case, Argentina’s National Supreme Court decided that rape victims—all rape victims—are entitled to legal abortions. For nearly a century, the only pregnant rape victim eligible for a legal abortion in Argentina was a mujer idiota o demente, an "idiot or demented woman.” Now, 91 years after the penal codes were drafted into Argentinean law, the nation’s highest court has affirmed that abortion is available to all rape victims, not just the mentally impaired. By Latin American standards, this is a huge victory.
The case involved a 15-year-old, identified as A.G., who was pregnant as a result of rape by her stepfather, a member of the police force in the province of Chubut. The girl requested judicial permission from a family court judge to get an abortion, even though such authorization is actually not required by law. The request was summarily denied because she didn’t have a mental disability. The girl’s family filed an appeal with the Supreme Court of Chubut, which overrode the family judge’s decision and determined that A.G. could have a legal abortion.
But that wasn't the end of the story. In a baroque turn of events, the Public Defender of Chubut Province appealed the Chubut decision to the National Supreme Court on behalf of A.G.’s fetus. He argued that the Chubut Supreme Court should not have approved the abortion because the girl did not fall under the mental disabilities category and that further; the right to life of the fetus had been violated by the girl’s abortion. In doing so the public defender was seeking to challenge the Court’s interpretation of the rape exception and revoke the order, even though A.G. already had the abortion. His strategy backfired. The National Supreme Court unanimously rejected the appeal and affirmed its support of the Chubut Court decision to permit A.G. a legal abortion on the grounds of rape.
The Supreme Court decision sets a clear ruling for the lower courts in Argentina to follow. The decision also establishes, for the first time, basic guidelines that the state and health providers must adhere to in order to ensure rape victims have access to legal abortions. Before, the absence of such guidelines enabled antiabortion doctors and judges—like the Chubut family judge—to create what were essentially illegal barriers to access. This included requiring women to get judicial authorization or a formal police complaint of rape. The ruling clarifies that neither are required; a woman’s statement to the fact that she’s been raped is sufficient. The Argentinian government must also ensure that hospitals and their staff provide rape victims timely access to abortion services. Women can no longer be turned away, and public health centers need trained staff and equipment to perform abortions.
The A.G. decision in Argentina doesn’t legalize abortion broadly. Only Congress can do that. The legal and medical barriers to abortion remain insurmountable for most women, which is why Argentina, a middle-income country with a fairly well-developed health system, has one of the highest incidence of unsafe abortion in Latin America. A study by the Guttmacher Institute, a leading research organization on reproductive health issues, determined that 95 percent of the 4.4 million abortions performed in Latin America in 2008 were unsafe.
At the same time, Argentina is better on reproductive rights than other nations in the region. Nicaragua, El Salvador and Chile completely ban abortion, with no exceptions, not even to save the life of a pregnant woman. These draconian laws reflect the outsized influence of the Catholic Church in Latin America. The intellectual class in Latin America often describes the double discourse of Catholic societies, which promote repressive policies on sexuality and reproduction while tolerating all kinds of questionable private behavior. In Nicaragua the Catholic Church introduced legislation to ban all abortions in 2006, an election year. Daniel Ortega, the former Sandinista president who supported access to abortion in the 1980s, publically converted to Catholicism and threw his weight behind the abortion ban. A few days after the bill passed, Ortega won the presidency with a comfortable 10 percent majority. During the 2010 presidential election in Brazil, Dilma Rousseff, a onetime Marxist militant, publically renounced her previously pro-choice position. Now in power, Rousseff continues to toe the Catholic Church party line on abortion and gay rights; just last year she signed a law requiring all women to register their pregnancies with the state.
In this context, the Argentine Supreme Court decision is a show of courage. Proposals to legalize abortion more broadly await debate in the Congress. Maybe legislators will take heart from the Supreme Court’s ruling and lift Argentina into the 21st century on abortion and women’s rights.