This post was written by Camila Leone and Rebecca Reingold.
On February 22, the President of Argentina, Mauricio Macri, announced that the country’s legislature will debate a bill that would decriminalize abortion on broader grounds. Currently, abortion is only legal when the pregnancy poses a risk to women’s life or health and in case of rape, as established by Argentina’s Criminal Code and the 2012 case F., A.L. s/medida autosatisfactiva. Under all other circumstances, abortion is criminalized.
Further decriminalization of abortion by the legislature has enormous potential to advance the health and protect the rights of women and girls throughout the country, particularly given the many barriers they currently face when attempting to access legal abortions.
One of the main barriers is the inconsistent and inadequate application of the country’s abortion law at the provincial level. Argentina is made up of 24 jurisdictions (23 provinces and the city of Buenos Aires) and each has taken a different approach to adopting the Ministry of Health’s national protocol related to the provision of comprehensive legal abortion services (Protocolo para la atención integral de las personas con derecho a la interrupción legal del embarazo, in Spanish).
Despite the fact that the national protocol provides clear guidance to the provinces regarding proper implementation of the abortion law and requires the provinces to refrain from imposing obstacles that hinder women and girl’s access to legal abortions, it does not have binding legal force, as provincial governments in Argentina maintain complete autonomy over the adoption of health-related policies.
At least one of the provincial protocols, moreover, is no longer in effect. In Córdoba, a catholic association challenged the province’s protocol, alleging that it violated the province’s constitutional protection of life from conception. A lower court found in favor of the plaintiffs and suspended the provision of abortion by provincial health centers in cases of rape. The Court of Appeals went even further, declaring the entire protocol to be unconstitutional. It also determined that the Supreme Court’s decision in the FAL case, which required each jurisdiction to adopt implementing regulations related to the provision of legal abortion, did not constitute binding precedent for the lower courts.
Women and girls in Argentina face numerous barriers to accessing safe abortions, not only because of the current law’s limited scope, but also because of difficulties associated with its implementation at the provincial level. Let’s hope that the upcoming legislative debate results in broader decriminalization, greater access, and improved health outcomes throughout the country.
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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.